U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions for the Week of January 30-February 3, 2023--

Supreme Court Happenings for the Week ending February 3, 2023 –

The next conference for the Justices is scheduled for February 17, 2023.

Favorable Federal Circuit Opinions for the Week of January 30-February 3, 2023 –

4th Circuit

United States v. Reed, (No. 19-7368)(4th Cir. January 31, 2023)--Reed appealrf the district court’s denial of his motion for a reduced sentence under Section 404(b) of the First Step Act of 2018. The district court determined that Reed was eligible for relief but declined to exercise its discretion to reduce Reed’s sentence. Reed argued that the district court should have reduced his sentence to at least the revised statutory maximum under the Fair Sentencing Act. Alternatively, he contends that the district court should have addressed its rejection of that argument. The Supreme Court’s recent decision in Concepcion v. United States, 142 S. Ct. 2389 (2022), instructs that district courts need not reduce any sentence under the First Step Act. But Concepcion also requires district courts to demonstrate that they have considered all nonfrivolous arguments raised by the parties. And under this record, the Court was unable to determine if the district court considered and rejected Reed’s statutory maximum argument. The Court vacated and remanded for reconsideration.

5th Circuit

United States v. Greer, (No. 22-30211)(5th Cir. February 1, 2023)– Greer was convicted in 2015 and sentenced to an 86-month term of imprisonment and six years of supervised release. In 2019, Greer violated conditions of his supervised release, and the district court sentenced him to fifteen more months of imprisonment to be followed by five years of supervised release. After starting his second term of supervised release, Greer again violated its conditions. The district court revoked Greer’s supervised release and sentenced him to eighteen more months of imprisonment. Greer timely appealed, arguing that his constitutional rights were violated at his preliminary revocation hearing, that the district court erred in detaining him pending the final revocation hearing, and that the district court imposed an unreasonable sentence upon revocation. In this case, if a term of supervised release is revoked because of multiple violations of supervision conditions, the district court may consider the “nature and circumstances” of those multiple violations but should calculate the length of a single term of imprisonment based on the most serious violation. The Court vacated Greer’s sentence and remanded for resentencing.

6th Circuit

United States v. White, (No. 21-3209)(6th Cir. January 31, 2023)– White challenged his designation as an armed career criminal, arguing that his Ohio aggravated robbery convictions do not qualify as predicate offenses under the Armed Career Criminal Act (ACCA) because the Ohio offense can be committed with a mens rea less than purposeful or knowing conduct. Applying the law as it exists at the time of the Court’s review, i.e., applying Borden, the Court concluded that on the record before it, the district court plainly erred in finding that White’s aggravated-robbery convictions qualify as violent felonies. The Court noted that this conclusion is partially dependent on the circumstance that the underlying theft offenses have not been identified nor shown to have as an element the knowing or purposeful “use, attempted use, or threatened use of physical force against the person of another.” If the underlying theft offense were shown to have such an element, the Court’s conclusion would be different. The Court vacated White’s sentence and remanded for resentencing consistent with this opinion.

9th Circuit

United States v. Baker, (No. 20-50314)(9th Cir. January 31, 2023)– The panel reversed Baker’s conviction for brandishing a firearm in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and remanded for a reduction of sentence or retrial on the § 924(c) count. The panel concluded that there is reasonable doubt whether the jury would have convicted Baker of brandishing a firearm in violation of § 924(c) absent the admission of the handgun.

10th Circuit

United States v. Kahn, (No. 19-8054 )(10th Cir. February 3, 2023)– This case comes before the court on remand from the United States Supreme Court. Doctor Shakeel Kahn (Dr. Kahn) was convicted for dispensing controlled substances not “as authorized,” in violation of 21 U.S.C. § 841(a). Included in his appeal to this court was his contention that the jury instructions issued by the district court improperly advised the jury regarding the mens rea requirement of § 841(a). We affirmed . In upholding the instructions, we relied on our prior precedent, United States v. Nelson, 383 F.3d 1227 (10th Cir. 2004).Dr. Kahn appealed to the Supreme Court, raising only his instructional challenge. The Supreme Court held that § 841(a)’s “knowingly or intentionally” mens rea applies to the “except as authorized” clause of the statute, vacated our judgment, and remanded the case for further proceedings consistent with its opinion. Ruan v. United States, 142 S. Ct. 2370 (2022). The Court concluded that the jury instructions issued in Dr. Kahn’s trial incorrectly stated the mens rea requirement of § 841(a) and, further, that such error was not harmless beyond a reasonable doubt. This prejudicial error infected all of Dr. Kahn’s convictions. The Court vacated Dr. Kahn’s convictions on all counts and remanded for new trial.

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 3,982 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 13,402 granted to date.
Compassionate Releases/Reduction in Sentences 4,413 granted to date.

COMMENT:

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 5 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.

Request a Written Case Evaluation