U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the Week of July 1-5, 2024--

U. S. Supreme Court Happenings– Week ending July 5, 2024 –

The Justices released an order list, which gave us 53 pages of copy to process. As is common for an end-of-term order list, this one starts with a bunch of GVRs (cert "granted," judgment "vacated," case "remanded") based on notable recent rulings, then follows with a few grants and then a bunch of comments on cert denials. In this order list there were a bunch of Erlinger remands along with a number of Loper Bright ones and a few based on Fischer and Diaz. The most notable of the set, though, are the many Rahimi remands in an array of cases raising Second Amendment challenges to various application of federal criminal gun possession prohibitions under 18 USC 922(g). In particular, it seems the Supreme Court has GVRed all the felon-in-possession cases that the U. S. Solicitor General suggested be taken up right away in light of Rahimi. We are not really surprised the Justices are content to kick federal felon-in-possession cases down the road, but it simply ensure a lot more legal churn in lower courts (and perhaps a lot more people unconstitutionally prosecuted) as the Justices go off on their summer vacation and the rest of us try to read Rahimi tea leaves. There is little doubt that the Justices will have to resolve the constitutionality of 922(g) (1) sooner or later, but they ultimately get to decided just when and how while the rest of use deal with the legal uncertainty. They did grant cert (and consolidate) two cases involving the application of the First Step Act. Specifically, as explained in this cert petition in one of the cases, the issue taken up by the Court in the new cases of Duffey and Hewitt is:
Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.

The Supreme Court resolved the criminal cases on its docket this Term. We have listed cases below involving federal/state prosecutors up against criminal defendants this term:

Argued OT23 SCOTUS cases with wins for criminal defendants:
McElrath v. Georgia (state case, 9-0 vote, Justice Jackson writing for Court, Justice Alito writing concurrence)
Smith v. Arizona (state case, 9-0 vote, Justice Kagan writing for Court, multiple concurrences)
Erlinger v. United States (federal case, 6-3 vote, Justice Gorsuch writing for Court, Justices Kavanaugh and Jackson writing dissents)
Snyder v. United States (federal case, 6-3 vote, Justice Kavanaugh writing for Court, Justice Jackson writing dissent)
Fischer v. United States (federal case, 6-3 vote, Chief Justice Roberts writing for Court, Justice Barrett writing dissent)

Argued OT23 SCOTUS cases with wins for government/prosecutors:
Pulsifer v. United States (federal case, 6-3 vote, Justice Kagan writing for Court, Justice Gorsuch writing dissent)
United States v. Rahimi (federal case, 8-1 vote, Chief Justice Roberts writing for Court, Justice Thomas writing dissent)
Brown v. United States (federal case, 6-3 vote, Justice Alito writing for Court, Justice Jackson (joined by Justice Gorsuch) writing dissent)
McIntosh v. United States (federal case, 9-0 vote, Justice Sotomayor writing for Court)
Diaz v. United States (federal case, 6-3 vote, Justice Thomas writing for Court, Justice Gorsuch writing dissent)
Thornell v. Jones (habeas case, 6-3 vote, Justice Alito writing for Court, Justices Sotomayor and Jackson writing dissents)
City of Grants Pass, Oregon v. Johnson (state case, 6-3 vote, Justice Gorsuch writing for Court, Justice Sotomayor writing dissent)

Favorable Federal Circuit Opinions for the Week of July 1-5, 2024 –

4th Circuit

United States v. Slocum, (No. 21-7283)(4th Cir. July 1, 2024)– Willie Slocum, Jr., appealed the district court’s denial of his 28 U.S.C. § 2255 motion to correct, vacate or set aside his convictions and sentences based on ineffective assistance of counsel. Slocum was indicted on two counts of drug conspiracy under 21 U.S.C. § 846, but Slocum argues that the two charged conspiracies were really one. Insisting that he was punished twice for the same conspiracy in violation of the Fifth Amendment’s Double Jeopardy Clause, Slocum argued that his trial counsel rendered ineffective assistance by failing to raise a double jeopardy challenge before the trial court. While not dispositive, Slocum’s ineffective assistance claim whether Slocum was put in double jeopardy in the first place. The district court determined that he was not. In fact, the district court declined to hold an evidentiary hearing on Slocum’s claim and denied his motion without ordering a response from the government. But conducting a factual inquiry guided by the “totality of the circumstances” test from United States v. MacDougall, 790 F.2d 1135 (4th Cir. 1986), and our multiple conspiracy case law, Slocum was punished twice for a single conspiracy in violation of the Double Jeopardy Clause. Still, whether trial counsel had a strategic reason for failing to raise a double jeopardy challenge is unclear on this record. Slocum is entitled to an evidentiary hearing under 28 U.S.C. § 2255(b) where the performance of his trial counsel can be assessed. The Court therefore, vacated the district court’s denial of Slocum’s § 2255 motion and remanded for an evidentiary hearing on Slocum’s ineffective assistance claim.

8th Circuit

United States v. Pinto, (No. 21-3461) (8th Cir. July 1, 2024) – After a nineteen-day trial, a jury convicted Steven Barros Pinto on multiple counts related to the importation and distribution of drugs. The district court imposed a total sentence of 400 months of imprisonment and 6 years of supervised release. Pinto argued that his separate convictions and sentences on Counts 1, 2, and 3 violate the prohibition against Double Jeopardy. Count 1 charged Pinto with conspiracy to distribute drugs, in violation of 21 U.S.C. § 841 and 846. Count 3 charged him with engaging in a Continuing Criminal Enterprise (CCE), in violation of 21 U.S.C. § 848. Count 3 incorporated the violation alleged in Count 1 as one of its elements, and the law is clear that Count 1 is a lesser included offense of Count 3. See Rutledge v. United States, 517 U.S. 292, 307 (1996). Here, the government selected the drug distribution conspiracy rather than the drug importation conspiracy to serve as the predicate offense for Pinto’s CCE charge. Only Count 1 is a lesser included offense of Count 3. Count 2 is not. The Court remanded to the district court to vacate Pinto’s conviction on either Count 1 or Count 3 and proceed to resentencing.

10th Circuit

United States v. Hess, et. al.,(Nos. 23-1008 & 23-1069)(10th Cir. July 2, 2024)--Funeral-home owner and operator Megan Hess and her employee- mother, Shirley Koch, pleaded guilty to mail fraud for fraudulently obtaining, selling, and shipping dead bodies and body parts to medical research, plastination, and body-broker companies. Despite the Defendants’ reaching plea agreements with the government that recommended guideline calculations and associated sentencing ranges under the Guidelines, the district court applied additional enhancements and after doing so varied upward to the statutory maximum of 20 years for Hess and to 180 months for Koch. Hess and Koch argue that the district court erred as a matter of law in its loss calculations, and Koch argues that the court incorrectly enhanced her sentence based on the court’s finding that the offense involved a large number of vulnerable victims and that Koch committed the offense using sophisticated means. Hess also asks that the Court reassign her case to a different judge on remand. Because the Court agreed with some of their arguments, it vacated their sentences and remanded for further proceedings in accordance with this opinion.

OTHER NEWS

ALERT 2020's Special Offer of Quick Lookup of methamphetamine cases to determine whether there is disparity in sentencing is still available until July 3, 2024. If you have a meth case, please take advantage of this offer. However, we must give us where you went to court, your case number if possible and an outside contact’s name and telephone number. This should be someone interested in helping you with your case.

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

Fair Sentencing/Retroactive Sentence Reductions 4,143 Orders Granted to date.
Elderly Offender Home Confinement 1,246. Approved to date.
First Step Act Releases 34,605 granted to date.
Compassionate Releases/Reduction in Sentences 4,726 granted to date.
Population in RRC’s 8,432.
Population in Home Confinement 4,948.

COMMENT:

Because of the short July 4th week, Courts were not open on Thursday and Friday this week. So, it was slow in the appellate courts.

We are still receiving a great amount of people wanting to find out if there was a disparity in there case regarding methamphetamine “actual” and “mixture.” Our new FREE LOOK program for methamphetamine cases ends on July 3, 2024. We have had hundreds of inquiries, and many people are qualified. This is only for methamphetamine cases and is not the same as a detailed in-depth Written Case Evaluation (“WCE”) for all remedies available. Please be patient, we have a lot of people to get to.

For the last 30 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.

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.