U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and Other News for the Week of March 11-15, 2024--

U. S. Supreme Court Happenings– Week ending March 15, 2024 –

In March 2024, there are no conferences scheduled for the Justices, but there is oral argument on March 18-20 and March 25-27, 2024.

The Supreme Court this morning handed down its opinion in the sentencing case of this Term we have been watching most closely to date, Pulsifer v. United States, a statutory interpretation matter dealing with a (too) complicated sentencing provision of the FIRST STEP Act. The Court ruled for the government in an unusual 6-3 split (though a division that was somewhat foreshadowed by the oral argument way back on the first day of this Term). The “safety valve” provision of federal sentencing law exempts certain defendants from mandatory minimum penalties, thus enabling courts to give them lighter prison terms. To qualify for safety-valve relief, a defendant must meet various criteria, one of which addresses his criminal history. That criterion, in stylized form, requires that a defendant “does not have A, B, and C” — where A, B, and C refer to three ways in which past criminality may suggest future dangerousness and therefore warrant a more severe sentence. In brief, A, B, and C are “more than 4 criminal history points,” a “3-point offense,” and a “2-point violent offense.” The question presented is how to understand the criminal-history requirement. The Government contends that the phrase “does not have A, B, and C” creates a checklist with three distinct conditions. On that view, a defendant meets the requirement (and so is eligible for safety-valve relief ) if he does not have A, does not have B, and does not have C. Or stated conversely, a person fails to meet the requirement (and so cannot get relief ) if he has any one of the three. The petitioner here instead contends that the phrase “does not have A, B, and C” sets out a single, amalgamated condition for relief. On his reading, a defendant meets the requirement (and is eligible for relief ) so long as he does not have the combination of A, B, and C. Or put conversely, he fails to meet the requirement (and cannot get relief ) only when he has all three. Today, we agree with the Government’s view of the criminal-history provision.

Favorable Federal Circuit Opinions for the Week of March 11-15, 2024 –

9th Circuit

United States v. Orozco-Orozco, (22-50146) (9th Cir. March 12, 2024)–In a case in which Melchor Orozco-Orozco was convicted of being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326, the panel affirmed the district court’s order denying Orozco’s motion to dismiss his indictment on equal protection grounds, reversed the district court’s order denying Orozco’s motion to dismiss under 8 U.S.C. § 1326(d), and remanded for further proceedings. Orozco was originally removed from the United States in 2013 through an expedited process after an immigration officer determined that his 2005 conviction for carjacking in violation of California Penal Code § 215 was an aggravated felony under the Immigration and Nationality Act (INA) because it qualifies as a “crime of violence.” Orozco argued that his carjacking conviction does not qualify as an aggravated felony under the INA because § 215 is not a categorical match for a “theft offense.” The California Supreme Court has held that a person can commit § 215 carjacking without the intent to steal required by a generic theft offense, see People v. Montoya, 94 P.3d 1098, 1100 (Cal. 2004), and this court is bound by the California Supreme Court’s statement of the elements of § 215, see Johnson v. United States, 559 U.S. 133, 138 (2010). The panel therefore concluded that Orozco’s 2005 carjacking conviction is not a categorical match for a generic theft offense and thus is not an aggravated felony under the INA. The panel remanded for the district court to consider in the first instance whether Orozco has satisfied all three prongs of § 1326(d)(1)-(3).

OTHER NEWS

U. S. Sentencing Commission Releases Latest "Compassionate Release" Data Through Sept 2023
The U. S. Sentencing Commission has now released its very latest data on sentence reduction motions, which also includes additional graphics and context about court dispositions of what are typically known as "compassionate release" motions. This Fiscal Year 2023 data run includes information through September 2023 (which is technically before the Commission's new guideline became law, but after it had been submitted to Congress).
Interestingly, the long-term data going back to the height of the COVID pandemic period reveals, unsurprisingly, that we now see in FY 2023 many fewer sentence reduction motions filed or granted. Though there are month-to-month variations, it would be roughly accurate to say that an average month of FY 2023 had a few dozen compassionate release motions granted and a few hundred of these motions denied nationwide. In will be interesting to see if the relatively stable monthly patterns here change in any significant way in FY 2024 since the Commission's new guideline became the new law of the land (as of November 2023).
Among the striking stories in these data are the variations in application and grant rates from various districts. As one example from the FY 2023 data, the Eastern District of Michigan granted half of a small number of sentence reduction motions (5 of only 10), whereas the Western District of Michigan granted none of a large number of sentence reduction motions (0 of only 60). Similarly, the Northern District of Illinois granted nearly half of these motions in FY 2023 (13 of 27), whereas the Central and Southern District of Illinois each granted only one such motion out of a pool of 44 motions. There are all sorts of other interesting data points in this new report. For example, it seems that a distinctively larger number of drug defendants secured sentencing reductions in FY 2023 (making up roughly 60% of the reduction grants while comprising only roughly 45% of the federal prison population). Also, reasons reported by judges for granting these motions are also intriguing.

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

Fair Sentencing/Retroactive Sentence Reductions 4,135 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 30,174+ granted to date.
Compassionate Releases/Reduction in Sentences 4,691 granted to date.
Population in RRC’s 8,150.
Population in Home Confinement 5,010.

COMMENT:

Pursuant to Pulsifer v. United States, though we will need some time to read and re-read the opinion before having firm thoughts, this ruling serves as still more evidence that the Supreme Court is no longer one of the most pro- defendant sentencing appeals courts. This week was another very slim week for favorable federal circuit cases. Now that Pulsifer has been released, hopefully, we will start getting more opinions from the Supreme Court in criminal cases soon like Rahimi.

We are still receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments such 814 and 821. We suggest that you opt for a Written Case Evaluation (“WCE”) as soon as possible to make that determination. Amendment 821 became effective on February 1, 2024, and we are already seeing a flood of these so-called motions being filed. We have seen the Form Fill-in Motions, which do not do the job the way it should be done. As such, all of those motions we have seen have been denied. There is a lot more to it than filling out a form. The motion must be personalized. A WCE will also tell you if you have any other relief available.

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.