U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions for the Week of January 8-12, 2024 --

U. S. Supreme Court Happenings– Week Ending January 12, 2024 –

The Justices met for their January 12, 2024 conference today.

On Wednesday, the Justices heard oral argument in Smith v. Arizona, (No. 22-899) (S.Ct. 2024)–The Supreme Court on Wednesday appeared sympathetic to an Arizona man who contends that his constitutional rights were violated when an expert witness testified for the prosecution about drug analysis performed by another forensic scientist’s. Jason Smith alleges that the expert’s testimony contravened the Sixth Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him,” and a majority of the justices seemed inclined to agree with him. Smith was convicted and sentenced to four years in prison after police officers executing a search warrant found methamphetamine and marijuana in a shed on his father’s property. Greggory Longoni, a forensic scientist from the state’s Department of Public Safety, testified at Smith’s trial that the substances the officers found were indeed illegal drugs. Longoni relied on testing conducted by another DPS scientist, Elizabeth Rast, who no longer worked for the state and did not testify.
The justices focused on two main points at Wednesday’s oral argument. The first was what purpose Rast’s documents had served at trial. Had they truly been used only as the basis for Longoni’s testimony, as the state contends and the Arizona courts concluded? The second question before the justices was whether Rast’s documents served as testimony (and were therefore subject to the confrontation clause at all) and what test the court should make that determination. a quick review of some of the press reports of today's oral argument suggest that the drug defendant seems likely to prevail in this case and that maybe a jurisprudentially significant ruling might be afoot.

Erlinger v. United States, (No. 23-370)(S.Ct. 2024)– As you may recall, this case is about the FIRST STEP Act's expansion of the mandatory minimum statutory safety valve (the "and" versus "or") to prove to be the most interesting and impactful sentencing case from the current Term. Pulsifer was the first case argued to start the Term back in October, and we are hopeful we might get an opinion in the coming weeks. The question in Erlinger is: “Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were ‘committed on occasions different from one another' The US Solicitor General told tje Court that, in light of the new "standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States," the feds believe that question has to be answered yes. Because both the defendant and the feds now agree that application of a part of ACCA implicates Apprendi rights, the top-side merits briefs filed last week come from both the defendant and the US Solicitor General. Stay tuned.

Favorable Federal Circuit Opinions for the Week of January 8-12, 2024 –

4th Circuit

United States v. Chance, (No. 15-4548)(4th Cir. January 12, 2024)– In 2022, the Supreme Court decided United States v Taylor, 142 S. Ct. 2015, and held that attempted Hobbs Act robbery is not a predicate crime of violence for purposes of 924(c). Departmental guidance provides that Taylor is applicable to cases on direct appeal. Therefore, to the extent this Court would find Chance has not forfeited the argument by failing to raise it in his opening brief, the government’s position is that Mr. Chance’s conviction on Count 9 should be vacated for resentencing in light of Taylor.At oral argument held on Tuesday, December 5, 2023, the government moved to vacate Chance’s conviction on Count 9 of the Second Superseding Indictment in light of the Supreme Court’s decision in United States v. Taylor, 142 S. Ct. 2015 (2022); and remand for resentencing on the remaining counts. Chance consented to the government’s oral motion. Upon consideration of the government’s motion, the Court granted the government’s motion, vacates the conviction on Count 9, vacates Chance’s sentence, and remands this case to the district court for resentencing on the remaining counts.

United States v. Ortiz, et; al., (No. 16-4844) (4th Cir. January 10, 2024)– Defendants Ortiz-Orellana (“Ortiz”), and others, were convicted in 2016 by a jury of conspiracy under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1962(d). Ortiz was also convicted of VICAR conspiracy to commit murder, in violation of 18 U.S.C. § 1959(a)(5) (Count 7); discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 9); and murder resulting from the Section 924(c)(1) offense, in violation of 18 U.S.C. § 924(j) (Count 10). Ortiz was sentenced to concurrent terms of life imprisonment on Counts 1 and 8; a concurrent term of seven years on Count 7; and a ten-year term on Count 9 and life term on Count 10, concurrent to each other but consecutive to the other terms. Because a sentencing court may not impose cumulative punishments for § 924(c) and § 924(j) if those violations are based on the same conduct, the proper remedy pursuant is to dismiss Count 9. In addition, the district court was mistaken in believing it was required to impose a life sentence on Count 10 consecutive of Counts 1, 7, and 8. The Court vacated and remanded Ortiz’s sentence only as to Counts 9 and 10.

United States v. Pettus, (No. 21-4281)(4th Cir. January 8, 2024)– Pettus pleaded guilty to possessing a firearm after being convicted of a felony. This case began with a robbery in Charlotte, North Carolina. Just after 1 a.m. on September 18, 2018, Pettus ran up to the much larger Matthew Salley and snatched a gold chain from Salley’s neck. Pettus fled, but Salley soon caught up and began beating Pettus with his fists. In response, Pettus pulled a gun, and Salley retreated. Concluding the district court did not provide “a sufficient explanation of its rationale” for applying an obstruction of justice enhancement to permit “meaningful appellate review,” the Court vacated the district court’s judgment and remanded for a new sentencing hearing.

OTHER NEWS

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

Fair Sentencing/Retroactive Sentence Reductions 4,130 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 27,746 granted to date.
Compassionate Releases/Reduction in Sentences 4,674 granted to date.
Population in RRC’s 7,936.
Population in Home Confinement 5,307.

COMMENT:

Please note our Special at the end of this newsletter which ends next week.

We are still receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments. We suggest that you opt for a Written Case Evaluation (“WCE”) as soon as possible to make that determination. Amendment 814 is now effective. A WCE will also tell you if you have any other relief available (WE NO LONGER OFFER FREE LOOKUPS).

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.

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