U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the week of February 5-9, 2024--

The Justices next conference is on February 16, 2024. We expect Order on February 20, 2024. –

The next conference for the Justices is scheduled for February 5-9, 2024.

Favorable Federal Circuit Opinions for the Week of February 5-9, 2024 –

2nd Circuit

United States v. Sims, (No. 21-3015)(2nd Cir. February 5, 2024)--Sims pleaded guilty to possessing a firearm after a prior felony conviction, in violation of 18 U.S.C. § 922(g). The district court imposed a term of imprisonment followed by a term of supervised release, subject to, as relevant here, a special condition that prohibited Sims from associating with “any member, associate, or prospect of the Jungle Junkies, or any other criminal gang, club, or organization.” On appeal, Sims challenged the condition as: (1) lacking support for its imposition from the district court or the record itself; and (2) impermissibly overbroad and vague. The Court agreed that neither the district court’s comments during the sentencing hearing nor the record show that it fulfilled the requirements necessary to impose the special condition of supervised release in question. The Court vacated the condition and remand for the limited purpose of permitting the district court to further explain its reasoning or develop the record as needed.

4th Circuit

United States v. Smithers, (No 19-4761) (4th Cir. February 2, 2024)– Joel Smithers, until this prosecution a doctor of osteopathy, was convicted on 861 counts, all related to his opioid-prescription practices. He was sentenced to a total of 480 months in prison. After his conviction, the Supreme Court in Ruan v. United States, 597 U.S. 450 (2022), clarified the mens rea required to convict someone of unauthorized dispensing or distributing of a controlled substance. Because Ruan makes clear that Smithers’ jury instructions misstated the law, and because the misstatements were not harmless error, the Court vacated the convictions and remandede to the district court for a new trial.

5th Circuit

United States v. Malmquist, (No. 22-50872)(5th Cir. February 6, 2024)– Malmquist appealed from a guilty-plea conviction and sentence of 151 months of imprisonment and four years of supervised release for conspiracy to possess with intent to distribute 50 grams or more of methamphetamine. On appeal, Malmquist contended that the Government breached the clause of the plea agreement in which the Government promised to recommend a three-level acceptance-of-responsibility reduction. Malmquist argued that the Government’s opposition to the reduction at sentencing constituted plain error because there is a reasonable probability that, but for the breach, he would have received a lesser sentence, and the Government’s improper extraction of benefits from the agreement resulted in a miscarriage of justice. The Court concluded that the Government’s breach of the plea agreement constituted plain error because the breach affected Malmquist’s substantial rights and called into question the fairness, integrity, and public reputation of the judicial proceedings. The Court vacated Malmquist’s sentence and remanded for resentencing

8th Circuit

United States v. Lester, Jr., (No: 23-2176)(8th Cir. February 8, 2024)– The 2002 amendment to 18 U.S.C. Sec. 841(b)(1)(A) does not prevent the district court from exercising authority under 18 U.S.C. Sec. 3583(e)(1) to terminate defendant's supervised release early under a plain reading of 841(b)(1)(A), then, in spite of Sec. 3583, a district court must impose a five-year term of supervised release; however, section 841(b)(1) does not impact a court's ability under sec. 3583(e)(1) to later terminate that individual's supervised release after they have served at least one year; thus, the district court in this case erred in determining it did not have discretion to consider a request for early termination. The case was reversed and remanded for further proceedings.

10th Circuit

United States v. Devereaux, (No. 22-1203)(10th Cir. Feburary 6, 2024)--In this direct criminal appeal, Devereaux challenged his sixty-month sentence for being a felon in possession of a firearm. Devereaux contended that, in calculating his sentence under the guidelines, the district court erred in treating his prior conviction under 18 U.S.C. § 113(a)(6) for assault resulting in serious bodily injury as a “crime of violence” and then using that prior conviction to increase Devereaux’s base offense level. The district court deemed Devereaux’s prior § 113(a)(6) conviction to be a “crime of violence” after determining that it had as an element the use, attempted use, or threatened use of physical force against the person of another. A § 113(a)(6) assault can be committed either intentionally or recklessly. The question here is whether those alternate mentesreae are elements of two different offenses proscribed by § 113(a)(6) or are instead different means to commit a single indivisible offense. Applying Mathis v. United States, 579 U.S. 500 (2016), the Court concluded they are different means to commit a single indivisible offense. In light of that and because the least criminalized conduct § 113(a)(6) proscribes is recklessness, a § 113(a)(6) conviction categorically does not have as an element the use, attempted use, or threatened use of physical force against the person of another. See Borden v.United States, 141 S. Ct. 1817 (2021) (plurality). The district court, therefore, erred in treating Devereaux’s prior § 113(a)(6) conviction as a “crime of violence.”, the Court vacated Devereaux’s sentence and remanded for resentencing.

OTHER NEWS

On February 2, 2023, the U. S. Sentencing Commission released its Proposed Amendments to the Sentencing Guidelines. Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Thursday, February 23 and Friday, February 24, 2023 to commence at 9:00 a.m. (ET) on both days. The public hearing will be held in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will be streamed live below.

The purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sexual Abuse of a Ward, and Acquitted Conduct. Because there are many more issues covered in the USSC's proposed amendments, and because the comment period runs through mid-March, we suspect these scheduled two days of public hearings are just the first of what may be a series of hearings.

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 29,021 granted to date.
Compassionate Releases/Reduction in Sentences 4,682 granted to date.
Population in RRC’s 7,950.
Population in Home Confinement 5,115.

COMMENT:

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.