U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and U.S. Sentencing Commission Promulgates Another Set of Notable Proposed Preliminary Amendments to the Sentencing Guidelines for the Week of January 27-31, 2025--
U. S. Supreme Court Happenings– Week Ending January 31, 2025 –
The Justices currently do not have any more conferences scheduled. Most of the case dispositions on Monday morning's Supreme Court's order list are cert denials, though there are a couple of items of interest for our cause.
First, the Supreme Court issued another Sixth Amendment GVR based on Erlinger in Fields v. Colorado, a state case out of Colorado involving application of its habitual offender law.
Second, Justice Thomas, joined by Justice Alito, dissented from the denial of certiorari in a criminal case from Ohio that involved a conviction
reversed by the Sixth Circuit on habeas review. As suggested by the start of his eight-page dissent in Davis v. Smith, Justice Thomas is quite displeased with both the disposition of this
case and the Sixth Circuit's habeas work more generally:
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) sharply limits the power of federal habeas courts to review state criminal convictions. The statute permits relief only when
there is “no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Harrington v. Richter, 562 U.S. 86, 102 (2011).
Unfortunately, some Sixth Circuit judges have “acquired a taste for disregarding AEDPA” and our cases on how to apply it. Rapelje v. Blackston, 577 U.S. 1019, 1021 (2015) (Scalia, J.,
dissenting from denial of certiorari). The decision below is the latest example of this practice. Because I would not overlook the Sixth Circuit’s blatant and repeated disrespect for the
rule of law, I respectfully dissent.
1st Circuit
United States v. Castillo, (No. 21-1599)(1st Cir. January 28, 2025)– For the second time, Castillo appeals a 235-month sentence imposed for engaging in abusive sexual conduct towards a minor under the age of twelve. See 18 U.S.C. § 2244(a)(5). In the earlier appeal, the Court vacated the sentence because the district court committed a procedural error by incorrectly applying a sentencing guidelines cross-reference, U.S.S.G. § 2A3.4(c)(1), which increased the bottom of the advisory guideline range from 63 months to 235 months of imprisonment. See United States v. Castillo, 981 F.3d 94 (1st Cir. 2020). On remand, the district court acknowledged the applicable lower guideline range but nevertheless imposed the same 235-month sentence. In this appeal, Castillo argued that the Court should again vacate the sentence because the prosecutor breached the plea agreement by giving only "lip service" to the government's promise to recommend up to a 180-month sentence. The Court agreed and vacated the sentence and remanded for further proceedings.
6th Circuit
United States v. Hale, (No. 24-5362) (6th Cir. January 30, 2025)– Hale moved for early termination of supervised release four years and four months into his ten-year term of supervision. The district court denied his motion. Because the district court here appears, understandably, to have read Sixth Circuit unpublished caselaw to require a showing of “exceptionally good” behavior as a threshold to relief, the Court vacated the district court’s order and remanded for reconsideration under the proper standard and of Hale’s motion.
9th Circuit
In Re Grand Jury Subpoena, dated July 21, 2023, (No. 24-2506)(9th Cir. January 28, 2025)– The panel reversed the district court’s order compelling a law firm to provide the government with a privilege log of documents that the law firm’s client asserts are protected under Fisher v. United States, 425 U.S. 391 (1976), and remanded for further proceedings. The panel held that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies, and that to determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the government without any such prior process, the panel reversed and remanded.
OTHER NEWSU.S. Sentencing Commission Promulgates Another Set of Notable Proposed Preliminary Amendments to the Sentencing Guidelines --
Last Friday, the Commission proposed defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure
methamphetamine. The Commission voted unanimously to publish two sets of proposed amendments to the federal sentencing guidelines for the amendment cycle ending May 1, 2025.
The first set of proposals update the Guidelines Manual’s provisions regarding supervised release. These updates aim to give courts the flexibility to impose supervision based on an individualized assessment of the relevant statutory factors, encourage early termination where warranted, and promote the appropriate use of revocation. It would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.
The second set of proposals update certain provisions of the Guidelines Manual related to drug trafficking. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her. If a trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.
The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38. At Level 30, the trafficker would be looking at an advisory sentencing range of 8 years instead of 20.
The second proposed amendment is something that we have been talking about for a long time. It would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.” The meth purity change could decrease Guideline base offense levels by up to 4.
COMMENT:We hope to find some time soon to review these notable new sets of proposed amendments and perhaps comment on some of the particulars. We appreciate the Commission for continuing to be proactive in its work to improve its guidelines. It appears that they will help a lot of inmates. Of course, the question remains if any of these Amendments will be retroactive. Stay Tuned.
In light of the recent En Banc Third Circuit decisions in Daniels and Range, we suggest that anyone with a non-violent non-drug conviction where they were charged under § 922(g) should opt for the quick lookup we are offering during January of 2025. Contrary to inmate rumor at inmate.com, there are no changes to § 924(c) convictions. However, the First, Fourth, Ninth, and Tenth Circuits have determined that district courts may consider § 403(a)’s non-retroactive changes in combination with other factors presented by an incarcerated person. These Circuits effectively allow district courts to consider an incarcerated person’s stacked charges as an extraordinary and compelling reason, so long as they present another factor that may warrant compassionate release. We will need an outside contact’s name and telephone number, where you went to court, and your case number. We will contact your contact and let them know if you have any potential relief available from the above remedies. Our case evaluation telephone number for the above is (832) 346-0220.
For the last 30 years, we have been very successful 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 you 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.