U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and U. S. Sentencing Commission Publishes Public Comment and Plans for Public Hearing on Proposed Guideline Amendments-- for the week of February 26-March 1, 2024--
U. S. Supreme Court Happenings– Week ending March 1, 2024 –
In March 2024, there are no conferences scheduled for the Justices, but there is oral argument on March 18-20 and March 25-27, 2024. However, we are hoping that some of the opinions we have been waiting for will be decided and released in March.
Favorable Federal Circuit Opinions for the Week of February 26-March 1, 2024 –7th Circuit
United States v. Johnson, (No. 22-2174)(7th Cir. February 29, 2024)– Johnson was convicted of federal firearms and methamphetamine-related drug-trafficking offenses. To determine his sentencing guideline range for the drug-trafficking offense, the district court tallied the amount of methamphetamine Johnson was responsible for dealing. In doing so, however, the district court did not account for whether the drugs in question were actual, pure methamphetamine or a mixture containing methamphetamine, as the Sentencing Guidelines require. Had the district court done so, Johnson’s guidelines range would have been lower, and nothing in the record rebuts the presumption that this error prejudiced Johnson. Accordingly, the Court vacated the judgment and remand the case for resentencing so that the district court can correctly determine the quantity of methamphetamine attributable to Johnson.
9th Circuit
United States v. Alahmedalabdaloklah, (No. 18-10435)(9th Cir. February 28, 2024)– The panel reversed in part the conviction, after a jury trial, of Alahmedalabdaloklah (Oklah), a Syrian national, for participating in a conspiracy that targeted U.S. military personnel and property in Iraq. The panel concluded, however, that several of the Government’s supporting declarations were insufficient to sustain its invocation of the state-secrets privilege because this privilege requires formal invocation, either by the head of the department that has control over the matter or by a minister who is the political head of the department. Reversing in part, the panel agreed with the parties that Oklah’s convictions on Counts 3 and 4, for conspiring to possess a destructive device in furtherance of a crime of violence and aiding and abetting the same, could not stand after the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019). On those counts, the panel remanded with direction to the district court to vacate the convictions and for resentencing.
DC Circuit
United States v. Brock, (No. 23-3045)(DC Cir. March 1, 2024)– Larry Brock participated in the violent January 6th riot at the United States Capitol
that forced the evacuation of members of Congress and their staff and prevented Congress’s certification of the 2020 presidential election until the next day. After a bench trial, the court
convicted Brock of six crimes, including corruptly obstructing Congress’s certification of the electoral count under 18 U.S.C. § 1512(c)(2). At sentencing, the district court applied a
threelevel sentencing enhancement to Brock’s Section 1512(c)(2) conviction on the ground that Brock’s conduct resulted in “substantial interference with the administration of justice[.]”
U.S.S.G. § 2J1.2(b)(2). Brock challenges both the district court’s interpretation of Section 1512(c)(2)’s elements and the sufficiency of the evidence to support that conviction. He also
challenges the district court’s application of the three-level sentencing enhancement for interfering with the “administration of justice.” Because the law and the record in this case
foreclose Brock’s legal and sufficiency challenges, we affirm Brock’s Section 1512(c)(2) conviction. As for Brock’s sentence, we hold that the “administration of justice” enhancement does
not apply to interference with the legislative process of certifying electoral votes. For that reason, we vacate Brock’s sentence for his Section 1512(c)(2) conviction and remand to the
district court for resentencing.
With regard to the Brock case above, the headline of a Washington Post piece about the ruling, “Appeals court ruling means over 100 Jan. 6 rioters may be resentenced,” suggests that lots and
lots of already sentenced Jan 6 defendants will benefit from this ruling. Not so fast, as stated by Ohio State sentencing guru, Professor Douglas A. Berman states on his criminal justice
blog: “I would guess that most, if not all, of the defendants who entered pleas and received this enhancement may be precluded by an appeal waiver and collateral appeal waivers from seeking
correction of an erroneous sentence. DOJ often has a way of insulating its errors, though I hope defendants who are serving extra time based on a legal error make all effort to find some
way to have the sentencing error corrected. Perhaps DOJ will be willing to forgo application of the waiver in these cases so that people who should be able to get resentenced have a means
to get to court.”
This week was a better week for favorable federal circuit cases. Hopefully, we will start getting some opinions from the Supreme Court in criminal
cases soon like Rahimi.
10th Circuit
U. S. Sentencing Commission Publishes Public Comment and Plans for Public Hearing on Proposed Guideline Amendments--
The U. S. Sentencing Commission is continuing to be quite busy. Specifically, the USSC officially posted here a "Compilation of Public Comment" concerning the proposed sentencing guideline
amendments that the USSC set out back in December. There, one of the proposed Amendment deals with acquitted conduct. From continuing the use of acquitted conduct to restricting (or even
eliminating) its use in sentencing, all options are on the table. The compilation comprises this 867-page pdf document, which the USSC's describes as a "representative sample of public
comment" that has been "carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations."
In addition, the Sentencing Commission today also noticed its planned "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines" to take place in DC on March 6-7, 2024. This
hearing will be live-streamed, and the "purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing
guidelines." The topics and witnesses for the two hearing days are all interesting, but we are especially interested in the topics of focus for day 1 ("acquitted conduct" and "simplification").
Stay tuned.
Fair Sentencing/Retroactive Sentence Reductions 4,135 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 29,896 granted to date.
Compassionate Releases/Reduction in Sentences 4,689 granted to date.
Population in RRC’s 8,049.
Population in Home Confinement 5,049.
This week was another slow week for favorable federal circuit cases. Hopefully, we will start getting some opinions from the Supreme Court in criminal
cases soon like Rahimi.
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 30 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.