U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & US Sentencing Commissions Published Proposed Guideline Amendments and Issues for Comment for January 9-13, 2023--

Supreme Court Happenings for the Week ending January 13, 2023 –

The Justices met today for their January 13, 2023 conference. With Monday being a federal Holiday, we expect Orders on Tuesday.

Favorable Federal Circuit Opinions for the Week of January 9-13, 2023 –

1st Circuit

United States v. Mendez-Rodriguez, (No. 21-1354)(1st Cir. January 12, 2023)– Méndez-Rodríguez entered a straight plea to a single count charge for the possession of a machinegun in violation of 18 U.S.C. § 922(o). He entered a straight guilty plea. Thereafter, the U.S. Probation Office prepared and submitted to the district court a presentence report ("PSR"). The PSR calculated a base offense level of eighteen pursuant to U.S.S.G. § 2K2.1(a)(5). However, Méndez-Rodríguez received a three-level deduction for acceptance of responsibility, for a total offense level ("TOL") of fifteen. The PSR also stated that Méndez-Rodríguez had no known prior arrests or convictions. Based on Méndez-Rodríguez's TOL and criminal history, the PSR calculated the applicable Guideline sentencing range ("GSR") to be eighteen to twenty-four months of imprisonment. The Court concluded that varying upward to thirty months of imprisonment "reflect[ed] the seriousness of the offense,” but "the district [court] did not state in open court, with sufficient specificity, the reasons for deciding to upward depart. As such, the Court remanded to the district court "for clarification and a further statement of reasons."

3rd Circuit

En Banc Third Circuit to Reconsider Constitutionality of § 922(g)(1)'s Felon-in-possession Gun Prohibition after Bruen–Range v. Garland, (No. 21-2835) (3d Cir. Nov. 16, 2022)– A per curiam Third Circuit panel opinion in which the Court concluded that a person convicted of state welfare fraud was "outside the class of people traditionally entitled to Second Amendment rights" and upheld felon disarmament under 18 U.S.C. § 922(g)(1) against a Second Amendment challenge. The Range opinion was the first big circuit opinion addressing felon gun dispossession under federal law after the landmark Supreme Court Bruen ruling changes Second Amendment jurisprudence. But Second Amendment law is Range free: via this order entered this past Friday, the full Third Circuit decided that this panel opinion in Range is to be vacated as the case will be reheard en banc (with oral argument scheduled for February 15, 2023).

4th Circuit

United States v. Mangarella, (No. 20-7912)(4th Cir. January 10, 2023)– Mangarella filed a motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i), relying primarily on his vulnerability to COVID-19 due to his advanced age and chronic lung-related health conditions. Although the government originally supported Mangarella’s motion, it later changed its position, and the district court ultimately denied relief. Mangarella appealed that denial, arguing in part that the district court, in weighing the sentencing factors outlined in 18 U.S.C. § 3553(a), failed to address or consider his heightened risk of death or serious illness if infected with COVID-19.The Court agreed with Mangarella, and vacated the court’s denial and remanded for reconsideration.

8th Circuit

United States v. Sommerville, (No. 22-1052)(8th Cir. January 9, 2023)– Somerville was convicted of unlawfully possessing a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court sent the voir dire pool a written questionnaire and then declined to let the defendants see the written responses, the court could not determine whether the subsequent voir dire questioning was adequate, and the matter is remanded to the district court for the limited purpose of disclosing the completed questionnaires to defendant Sommerville and the government and taking any steps it deems necessary to determine whether concealed jury bias prejudiced Sommerville, including holding a hearing He challenged the district court’s decision to withhold juror questionnaires that were completed as part of voir dire. The Court remanded Somerville’s case to the district court for the limited purpose of making the completed questionnaires available to the parties and determining whether juror bias prejudiced Somerville.

OTHER NEWS

US Sentencing Commissions Published Proposed Guideline Amendments and Issues for Comment

Yesterday, the fully loaded US Sentencing Commission held a public meeting in which it discussed and published proposed guideline amendment on a number of topics. This official press release provide this summary:

The United States Sentencing Commission voted today to publish for comment proposed guideline amendments on several topics, including revisions that would implement two significant changes made by the First Step Act of 2018.

The First Step Act authorized defendants for the first time to file a motion for compassionate release, without having the Director of the Bureau of Prisons make a motion. The proposed amendment would add this new procedural option. The amendment would also revise the circumstances identified by the Commission as “extraordinary and compelling reasons” for purposes of a motion for compassionate release.

The First Step Act also expanded “safety valve” eligibility for relief from mandatory minimum penalties to certain offenders with more than one criminal history point. The Commission proposed changes that would update §5C1.2 and amend the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission also voted to publish a proposed amendment implementing the Bipartisan Safer Communities Act — firearms legislation that passed after the school shooting in Uvalde, Texas. The Act directed the Commission to increase penalties for certain firearms offenders, particularly straw purchasers.

The Commission also published a package of amendments relating to the criminal history rules, including reconsideration of “status” points for defendants who commit the instant offense while under another criminal justice sentence, the treatment of defendants with zero criminal history points, and the impact of simple possession of marihuana offenses.
The amendment also presents an alternative to the “categorical approach,” a complex legal test courts use to determine whether a conviction qualifies an offender for enhanced penalties under the guidelines.

The proposals are subject to a 60-day public comment period running through mid-March. The Commission will hold public hearings in February and March to receive expert testimony on the amendments proposed at today’s meeting. The events will stream live on the Commission's website. A data briefing on today’s proposed criminal history amendments will also be made available in the coming weeks.

Notably, this overview of proposed amendments only provides a partial account of all in the new proposed amendment. For example, the proposals also include a provision to "amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction."

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

Fair Sentencing/Retroactive Sentence Reductions 3,977 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 11,871 granted to date.
Compassionate Releases/Reduction in Sentences 4,396 granted to date.

COMMENT:

ALERT 2020 can confidently predict the Range case is one case worth watching closely and one that might make for some notable new Second Amendment law. Stay tuned.
Anyone who 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 11 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.