U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of October 24-28, 2022--

Supreme Court Happenings for the Week ending October 28, 2022 –

The Justices met today for their October 28, 2022 conference. We expect Orders on Monday.

Favorable Federal Circuit Opinions for the Week of October 24-28, 2022 –

4th Circuit

United States v. Valesquez, (No. 20-4514)(4th Cir. October 25, 2022)– Velasquez appealed his convictions for two drug-related offenses, asserting that his jury trial on those charges did not occur within the timeframe established by the Speedy Trial Act. See 18 U.S.C. §§ 3161(c)(1), 3162(a)(2). He also challenged his sentence, arguing that the district court procedurally erred in calculating the drug weight attributable to him and by not orally announcing during sentencing the discretionary conditions of supervised release imposed upon him in the written judgment. The Court agreed with Velasquez that the record does not show that the district court complied with the Act’s procedural requirements for granting an ends-of-justice continuance for the period between July 22, 2019, and November 7, 2019. See 18 U.S.C. § 3161(h)(7). Because that 108-day period exceeds the Speedy Trial Act’s 70-day timeframe within which his trial had to occur, the Court reversed the district court’s order denying Velasquez’ motion to dismiss these two counts and vacated those convictions. Becaise vacating the convictions required vacating Velasquez’ entire sentence, which in turn moots his two sentencing challenges, the Court remanded to the district court for further proceedings consistent with this opinion.

5th Circuit

United States v. Ferris, (No. 22-50117)(5th Cir. October 25, 2022)-- Ferris appealed his sentence, arguing that the district court erred in applying the cross-reference provision in U.S.S.G. § 2J1.4(c)(1). The Court held that the facts do not support application of the cross-reference provision to the drug-trafficking sentencing guidelines. The record here only demonstrates that Ferris engaged King’s Daughters in a series of “simple buy-sell transaction[s],” lacking any evidence that these transactions evolved beyond that. Because the evidence fails to show that Ferris intended to traffic his fentanyl patches, it likewise cannot demonstrate that he induced Collins into doing the same. VACATE and REMAND in part. The Court vacated the district court’s application of U.S.S.G. § 2J1.4(c)(1) and remanded for resentencing in accordance with this opinion.

11th Circuit

United States v. Malone, (No. 20-12744)(11th Cir. October 26, ,2022)– Malone sought vacatur of his 71month sentence. He contended the government breached his plea agreement by arguing at sentencing against recommendations it allegedly promised to make to support a lower sentence than Malone received. But Malone never objected at sentencing that the government failed to live up to its bargain. So, the Court subjected Malone’s claims to plain-error review on direct appeal. On direct appeal, Puckett requires us to engage in plain-error review when a defendant raises an unpreserved claim that the United States breached his plea agreement. The Court agreed with Malone that the government breached the plea agreement in two ways. One of those breaches prejudiced Malone and seriously affected the fairness of the judicial proceedings. For that reason, the Court exercised its discretion to vacate Malone’s sentence and remand for resentencing before a different district-court judge.

OTHER NEWS

U. S. Sentencing Commission Finalizes its Policy Priorities for the 2022-2023 Amendment Year –

This morning brought the first public US Sentencing Commission hearing in nearly four years, which was convened to finalize the USSC's priorities for the coming amendment year. Here are all the details:

The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023. Among its top priorities is implementation of two significant changes made by the First Step Act of 2018. The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion. This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants. At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results.“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission.

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties. The Act expanded eligibility to certain offenders with more than one criminal history point. The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs. “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

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

Fair Sentencing/Retroactive Sentence Reductions 3,960 Orders Granted to date.
Elderly Offender Home Confinement 1,202 Approved to date.
First Step Act Releases 10,356 granted to date.
Compassionate Releases/Reduction in Sentences 4,324 granted to date.

COMMENT:

With regard to the U. S. Sentencing Commission’s priorities, there are lots and lots of "hot topics" covered in many of the topics now to be tackled by the Commission in the list of now finalized priorities. We are extremely excited to see what the new Commission has planned for these topics.

Recently, we reported on a case out of the Western District of Texas, Midland-Odessa Division in United States v. Quiroz, (No 22-cr-00104) (W.D.Tex., September 19, 2022), wherein U. S. District Judge David Counts held that in light of New York State Rifle & Pistol Assn., Inc. v. Bruen, (No. 20-843) (S. Ct. June 23, 2022) that § 922(n) was unconstitutional. Now comes, United States v. Price, (No 2:22-cr-00097) (S.D.W.Va., Oct. 12, 2022)–wherein West Virginia defendant Price was caught with a gun that had serial numbers filed off. He was charged with being a felon-in-possession under 18 USC § 922(g)(1) and with violating § 922(k). The district court held that the felon-in-possession statute was constitutional, but that § 922(k) was not. The government could not show that the obliterated serial number statute was “consistent with the Nation’s historical tradition of firearm regulation.” It appears that the Bruen decision is going a lot further than most anticipated. So far, there has not been any courts stating that because of Bruen § 922(g) is unconstitutional, which seems to be a stretch but you never know.

With regard to President Biden’s Marijuana Pardon program, we believe that where it could be the most helpful is for people deemed career offenders, or for § 851 enhancements or for Criminal History Categories reductions. This would mean significant reductions for many more than the estimated 6500 the government believes will benefit.

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 27 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.