U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of December 19-23, 2022--

Supreme Court Happenings for the Week ending December 23, 2022 –

The Justices will not have any conferences until next year.

Favorable Federal Circuit Opinions for the Week of December 19-23, 2022 –

5th Circuit

United States v. Montemayor, et. al., (No. 21-40162)(5th Cir. December 19, 2022)– Two members of a group of criminals whose business model was to steal drugs and money from other criminals were jointly tried. The multiple counts in the indictment charged the defendants with offenses involving drugs, firearms, carjackings, and robbery. Both defendants were convicted after a jury trial. Among the many appellate issues are the propriety of introducing certain evidence gathered from cell phones, possible errors in the description of certain offenses in the indictment and jury instructions, and whether the judge improperly made fact findings about drug quantities. One error requires a remand for the Government to elect between overlapping counts. The defendants were convicted of one drug trafficking conspiracy, Count One, but two counts of discharging a firearm. They received consecutive sentences for separate Section 924(c)(1) violations. Though the two counts allege separate incidents on different dates, multiple firearm counts cannot be predicated on the same conspiracy: the Government conceded these two counts violate double jeopardy because they were predicated on the same conspiracy offense. The convictions on those two counts were vacated and, on remand, the Government was required to elect which count to dismiss.

7th Circuit

United States v. Jones, (Nos. 20 1405)(7th Cir. December 22, 2022)– Fourteen people were charged and convicted for a conspiracy to transport illegal drugs from Georgia for distribution in Kokomo, Indiana. One of these people was Thomas Jones. The district court determined that the scope of criminal activity for purposes of the Thomas Jones firearm enhancement was the January 2018 transaction. The buyer’s wife was a participant in that purchase: though she was kept in the dark about details, she knew her husband was buying drugs and she accompanied him for protection. But she was on the other side of the transaction, which was a firsttime sale by Michael Jones to the buyer. Michael and Thomas Jones were not conspiring with the buyer and his wife, so her possession of a firearm is difficult if not impossible to attribute toThomas Jones. The district court found that it was foreseeable to Thomas Jones and enhanced his entence for the gun.The district courtclearly erred in applying the enhancement to Thomas Jones. The Court vacated his sentence and remanded for resentencing.

OTHER NEWS

Federal Crack Sentencing after New Ag Garland Memos –

US Attorney General Merrick Garland issued new federal charging guidelines this past Friday. There are lots of things to say about a lot of the particulars of these guidelines (including why they took so long to be produced), although the bulk of the media coverage has been about the AG Garland's specific instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses." That instruction alone justifies lots of discussion. Literally hours before seeing the new AG charging guidelines, Congress was closing in on a deal to lower crack sentences so as to reduce (but not eliminate) the statutory crack/powder disparity. Though the AG issuing discretionary charging guidelines ought not directly impact how legislators think about statutory reform, everything that happens inside the Congress can echo through all the work of others.

As such, negotiations in the U.S. Senate to narrow sentencing disparities between crack and powder cocaine have stalled, two sources said on Monday, in what could prove a blow for criminal justice reform advocates.... [I]n the last three days, negotiations to tuck the measure into the year-end spending bill, considered key for its passage, have largely ground to a halt.

A Friday decision by Attorney General Merrick Garland to instruct federal prosecutors to end disparities in the way they charge offenses involving crack and powder upset some Republican legislators, who accused the Justice Department of usurping congressional authority.

A bipartisan group of lawmakers recently came to an agreement on statutory changes that could possibly be included in the year-end funding bill. Senator Chuck Grassley, the top Republican senator on the Judiciary Committee, said in a Friday statement. "That hard-won compromise has been jeopardized because the attorney general inappropriately took lawmaking into his own hands."

Perhaps AG Garland already knew that Senator McConnell was going to block crack sentencing reform before issuing his bold charging guidelines. But, if there was still a realistic chance at crack sentencing reform that AG Garland disrupted simply by not waiting a few more days to issue these (long-overdue) guidelines, then this was an epic blunder in timing. Alert still believes that this is all a smoke screen because neither Garland’s new federal charging guidelines or the Grassley bill were retroactive. However, all isn’t lost because of cases like Concepcion, AG Garland could have prosecutors bring, and vocally and consistently support, motions for sentence reductions under 3582(c)(1)(A) for crack offenders who are still serving unduly long and unfair crack sentences based in the unjust disparity. Time will tell, but we are on it.

New Data and a Notable Date from the US Sentencing Commission –

The US Sentencing Commission on Tuesday published two new data reports: (1) updated compassionate release data report and (2) FY 2022 fourth quarter sentencing data. There are lots of stories within all these data, though we still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate. On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five (5) years. But, of course, we now have a fully loaded Commission, and the Commissioners are clearly hard at work on guidelines reforms. We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include “Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment.” Stay tuned.

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

Fair Sentencing/Retroactive Sentence Reductions 3,973 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 11,421 granted to date.
Compassionate Releases/Reduction in Sentences 4,373 granted to date.

COMMENT:

Not much love from the circuit courts this week, but it is a Holiday week. We believe that there are ways to make AG Garland’s Memo work retro in some cases with the right judge. 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 3 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.