U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions for the Week of January 16-20, 2023--

Supreme Court Happenings for the Week ending January 20, 2023 –

The Justices met today for their January 20, 2023 conference. We expect Order on Monday.

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's Supreme Court conference. We were hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality. We are pretty sure that all the other acquitted conduct cases considered in the last week’s conference were also relisted. Relisting is often a precursor to a later granting of certiorari. We are hopeful about the possibility of 2023 being the year the Court takes up acquitted conduct sentencing. Stay tuned.

Even though the Supreme Court did not grant McClinton last Friday, it did grant cert on a number of cases, but only one criminal case and immigration case with criminal law elements as follows:

Counterman v. Colorado

The court agreed to weigh in on an important free speech question: What test should courts use to determine whether statements are “true threats” that are not protected by the First Amendment? The question comes to the court in the case of Billy Raymond Counterman, who was convicted and sentenced to four-and-a-half years in prison for stalking a local musician....

Pugin v. Garland and Garland v. Cordero-Garcia

In a pair of immigration cases that have been consolidated for oral argument, the justices agreed to decide whether a criminal offense that does not interfere with an existing investigation or judicial proceeding qualifies as an “offense relating to obstruction of justice,” a serious crime that can result in deportation and additional criminal punishment for noncitizens.

Favorable Federal Circuit Opinions for the Week of January 16-20, 2023 –

2nd Circuit

Hall v. United States, (17-1513)(2d Cir. January 19, 2023)– In October 2015, Hall pleaded guilty to two counts: conspiracy to commit Hobbs Act robbery, see 18 U.S.C. § 1951(a), and unlawful use of a firearm in furtherance of a crime of violence, see id. § 924(c)(l)(A). In his plea agreement, Hall waived his right to appeal or collaterally challenge his convictions and sentence so long as the district court sentenced him to a term of imprisonment equal to or less than 106 months. He was sentenced principally to 96 months’ imprisonment. Hall now appealed from the April 2017 order of the district court (Glasser, J.) denying his motion under 28 U.S.C. § 2255 to vacate his section 924(c)(1)(A) conviction and his corresponding sentence. He contended that the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319 (2019), invalidate his conviction on that count. Johnson held the residual clause of 18 U.S.C. § 924(e)(2)(B) to be unconstitutionally vague. On de novo review, and in light of the Supreme Court’s recent decision in United States v. Taylor, 142 S. Ct. 2015 (2022), that attempted Hobbs Act robbery is not a “crime of violence,” the Court concluded that Hall’s conviction under section 924(c)(1)(A) was invalid and reversed the district court’s order denying Hall relief and remanded for resentencing.

5th Circuit

United States v. Wright, (21-40849)(5th Cir. January 18, 2023)– At issue is whether Wright was seized in violation of the Fourth Amendment when an officer, with emergency lights engaged, pulled behind Wright’s parked vehicle, and he did not attempt to flee or terminate the encounter, but failed to comply fully with the officer’s commands. Because the officer’s actions communicated clearly to Wright he was not free to leave, and because he submitted to the officer’s show of authority, the Court held a Fourth Amendment seizure occurred at the time the officer activated her emergency lights and almost simultaneously ordered him to stay in his car, which he continued exiting but stood beside. The district court at the end of an evidentiary hearing, however, denied Wright’s motion to suppress, concluding erroneously that the Terry stop was initiated instead at a later point in the encounter. As a result, its oral findings of fact and conclusions of law are inadequate for our reviewing whether reasonable suspicion existed at the earlier time the Court held his seizure occurred. Therefore, while retaining jurisdiction over this appeal, the Court remanded to district court for it, based on the record developed at the suppression hearing, to prepare expeditiously written findings of fact and conclusions of law on whether the seizure at the earlier point in time was in violation of the Fourth Amendment. The district court is to then return this case to this Court for further proceedings. Remanded on Limited Basis; Jurisdiction Retained.

11th Circuit

En Banc Eleventh Circuit Limits Reach of Career Offenders under USSG Based on Plain Text of Guideline for Drug Offenses–
The en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision. The en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in United States v. Dupree, (No. 19-13776) (11th Cir. Jan.18, 2023). This matter is another case with a Kisor role shifting guideline interpretation, and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846. Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that the decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument. United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). The Court granted Dupree’s petition to rehearing the case en banc. After careful consideration, and with the benefit of oral argument, the Court held that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses. The Court vacated Dupree’s sentence and remanded to the district court for resentencing.

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

Fair Sentencing/Retroactive Sentence Reductions 3,983 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 13,063 granted to date.
Compassionate Releases/Reduction in Sentences 4,408 granted to date.

COMMENT:

ALERT 2020 believes that the Dupree case in the Eleventh Circuit is a big one. There have been similar cases in other circuits, but an En Banc decision holds more weight that a normal published case. As such, it certainly has a chance to help a lot of people who are career offenders and have inchoate offenses as one of the predicate offenses. If you are a career offender and have an inchoate offenses as one of your predicate offenses, we suggest that you contact us about a Written Case Evaluation to determine if you may have relief coming and voiding your career offender enhancement.

Anyone who also 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. It is thorough and detailed from day one of your case.

There were 12 new compassionate release motions granted this week.

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.