U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and Other News for the week of February 12-16, 2024--

U. S. Supreme Court Happenings– Week ending February 16, 2024 –

The Justices met for their conference is today. We expect Order on February 20, 2024.

Favorable Federal Circuit Opinions for the Week of February 12-16, 2024 –

9th Circuit

United States v. Parkins, (No. 22-50186)(9th Cir. February 14, 2024)– The panel reversed the district court’s denial of Brett Wayne Parkins’s suppression motion concerning the search of his apartment, and remanded, in a case in which Parkins was convicted of aiming a laser pointer at an aircraft. The district court held that patrol officers’ warrantless search of the apartment, to which Parkins’s girlfriend consented, was valid. After reviewing the Supreme Court’s cases regarding warrantless searches involving the consent of a co-tenant, the panel concluded that to satisfy Georgia v. Randolph, 547 U.S. 103 (2006), Parkins must have both been present on the premises and expressly refused consent. The panel explained that a defendant need not stand at the doorway to count as being physically present—presence on the premises (including its immediate vicinity) is sufficient. The panel wrote that in light of the layout of the property and Parkins’s close proximity to his apartment, the nearby mailboxes bordering the parking lot where Parkins was detained were part of the relevant premises; thus, under Randolph, Parkins was physically present on the premises to validly object. The panel also wrote that it is clear that Parkins expressly refused consent, as Parkins’s statement not to let the police into the apartment expressly conveyed his objection and the import of that statement was especially clear following on the heels of his physical resistance at the doorway of his home. Accordingly, the consent-based search of Parkins’s home was unlawful.

OTHER NEWS

U. S. Sentencing Commission Publishes Two Public Data Briefings to Inform Comments on Some Proposed Guideline Amendments–
The U. S. Sentencing Commission's recently announced “Data Briefings on Proposed Amendments” to announce the publishing of “supplemental data to inform public comment on recently proposed amendments relating to youthful individuals and simplification.” The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines. In order to further inform commenters, the application of departure provisions other than §5K1.1 or §5K3.1 (either alone or in conjunction with §5K1.1 or §5K3.1), i.e., “Other Departure.” The Commission is also seeking public comment on proposed amendments to the federal sentencing guidelines. Commission staff prepared a data presentation to inform public comment on a two-part proposed amendment related to youthful individuals. This briefing presents data on the impact of juvenile adjudications on criminal history scoring and sentencing outcomes to help inform public comment.
Disappointingly, however, the USSC has not yet published any detailed data concerning its proposed amendment to the Guidelines Manual that includes three options to address the use of acquitted conduct for purposes of determining a sentence. We are not sure if the lack of data on this front bodes well or ill for guideline reforms on that front.

Should a Bounce in Crypto Markets Mean a Much Lower Federal Sentence for Sam Bankman-Fried?
Former FTX boss Sam Bankman-Fried (SBF) may be handed a lighter sentence than otherwise when he faces District Judge Lewis A. Kaplan next month because customers of the bankrupt exchange will probably be made whole thanks to a bounce in crypto markets and the buoyancy of certain investments held by the estate.
Bankman-Fried was found guilty of fraud in November 2023, about a year after his crypto trading empire collapsed. During the bankruptcy process, the crypto market has risen sharply -- CoinDesk Indices' CD20 gauge has gained more than 130% -- meaning many thousands of hapless creditors are going to receive all the funds they had locked in, albeit at November 2022 prices. In July last year, the bankruptcy team said customers were owed $8.7 billion.
The jump in crypto markets matters because restitution can be taken into account for sentencing. For example, for low losses, the guidelines suggest a range of 24-30 months. A high-loss amount, in contrast, could lead to a draconian range of upwards of 20 years’ imprisonment, or even life, according to Jordan Estes, a partner at the New York City office of law firm Kramer Levin. “I would expect the loss amount to be hotly contested at sentencing,” said Estes, a former assistant U.S. attorney who co-led the general crimes unit in the Southern District of New York, where the trial took place. “In particular, the defense may argue for a substantially lower loss amount, or even a loss amount of $0, if all customers and creditors will be made whole,” she told CoinDesk via email.
That said, the U.S. sentencing guidelines that give defendants credit for amounts returned to victims apply only when the return took place before the offense was detected. In this case, it’s clearly not SBF who is giving the money back, and the payments come well after discovery of the offense. A possible parallel is the case of fraudulent financier Bernie Madoff, who died in prison at the age of 82 while serving a series of consecutive sentences that ran to 150 years. In Madoff's case, the bankruptcy trustee also recovered large sums of stolen money, but he didn't receive any credit for that.

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

Fair Sentencing/Retroactive Sentence Reductions 4,133 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 29,389 granted to date.
Compassionate Releases/Reduction in Sentences 4,686 granted to date.
Population in RRC’s 7,966.
Population in Home Confinement 5,097.

COMMENT:

This week was a very slow week for favorable federal circuit cases. Hopefully, we will start getting some opinions from the Supreme Court in criminal cases.

We are still receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments such 814 and 821. We suggest that you opt for a Written Case Evaluation (“WCE”) as soon as possible to make that determination. Amendment 821 became effective on February 1, 2024, and we are already seeing a flood of these so-called motions being filed. We have seen the Form Fill-in Motions, which do not do the job the way it should be done. As such, all of those motions we have seen have been denied. There is a lot more to it than filling out a form. The motion must be personalized. A WCE will also tell you if you have any other relief available.

For the last 29 years, we have been very successful. We can help on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, Earned Time Credits, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons and other specialized motions to mention a few avenues for relief we cover. The WCE is an excellent low cost tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case to present with our recommendations of any remedies available to gain relief.

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.