U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and Other News for White Collar and Firearm Possession for the week of October 30-November 3, 2023--

Supreme Court Happenings for the Week ending November 3, 2023 –

The Justices met for their November 3, 2023 conference today. They will have oral argument next week on Monday, Tuesday and Wednesday. On Tuesday, oral argument will be held on one of the most important cases this term, United States V. Rahimi ( 22-915) where the issue is: “Whether 18 U.S.C. 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment on its face.” Rahimi provides the Supreme Court with an opportunity to clarify how lower courts should apply the new framework laid out in Bruen. This will significantly impact the continued viability of current gun laws. Of course, the opinion will not probably be available until the end of the term in June of 2024.

Then, there is the 3rd Circuit case, Range v. Atty General, which involves a man convicted of food stamp fraud 25 years before who was prevented from buying a gun. After seeking cert on the Range decision, the government suggested the Court sit on the petition until a decision is handed down in Rahimi. We believe that the Range case could make a huge difference. It never made sense to us why a person would be prohibited from owning a gun if his prior conviction was non-violent and there were no guns involved in the case such as in Range where the defendant’s prior conviction was for food stamp fraud. Stay tuned.

Favorable Federal Circuit Opinions for the Week of October 30-November 3, 2023 –

1st Circuit

United States v. Ramos-Baez, et. al.,(20-1240)(1st Cir. November 3, 2023)– Ramos-Baez and many others were indicted and convicted in a RICO case, in violation of 18 U.S.C. § 1962(d). In this consolidated appeal, Ramos-Baez and two other appellants contended that hearsay statements by alleged coconspirators were admitted into evidence at trial in violation of United States v. Petrozziello. The Court concluded that this challenge required a remand to the District Court because no finding was made below as to whether the statements at issue were made in furtherance of the alleged conspiracy.

OTHER NEWS

Third Circuit's Latest Jolt to Loss Calculation in Federal Fraud Guidelines–

We get a lot of people asking about why we do not publish weekly white color crime cases. The reason is that we only publish the positive cases for that specific seek. We do not make up the cases. So, we do not have any control on the kind of positive cases there will be in a specific week. However, from time to time we run across something for our white color people. Thanks to Professor Douglas A. Berman of Ohio State University, we came across the following information:

A few years ago we published in our newsletter, United States v. Riccardi, (No. 19-4232) (6th Cir. Mar. 3, 2021), wherein the panel ruled that a quirky part of the commentary to the § 2B1.1 fraud guideline improperly expanded the guideline term "loss." We commented that ruling could further undermine the key § 2B1.1 guideline commentary stating that "loss is the greater of actual loss or intended loss." Notably, last year we published in our newsletter, United States v. Banks, (No. 19-3812) (3d Cir. Nov. 30, 2022), a Third Circuit penal embraced that thinking when holding that "the loss enhancement in the Guideline’s application notes impermissibly expands the word 'loss' to include both ntended loss and actual loss."

On November 1, 2023, Bloomberg News has a lengthy discussion of some of the fall-out of the Banks ruling under the headline "Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling." Below are some excerpts:

“The No. 1 variable that moves the needle in sentencings for white collar cases is the loss amount,” said Andrew Boutros, a white-collar defense attorney at Dechert. “The loss amount has a huge impact on the ultimate advisory sentencing range that the court calculates.”...
The fallout started last year after the 3rd Circuit ruled that Banks, a Pennsylvania man convicted of attempting to dupe Gain Capital Group LLC out of $246,000, should be resentenced. The online trading company, the court found, suffered no actual losses given that it never sent him the funds. The Banks decision is significant since the gap between actual and intended losses in fraud cases can be vast, greatly skewing the amount of prison time from barely any to more than a decade.
The ruling has sparked a debate on how much deference to give the US Sentencing Commission’s interpretation of its own guidelines, which includes a scale for federal judges across the country to follow for ratcheting up prison time based on losses to victims. The commission suggests in its commentary using the greater of actual or intended loss when determining sentences. But the appellate panel in Banks used a Supreme Court decision to challenge the commission’s authority to interpret its own rules in finding that only actual loss should be used to calculate sentences.
Prosecutors have tried to persuade judges that the sentencing commission’s interpretation deserves deference. The Justice Department has warned that relying only on actual losses would let certain defendants off the hook who are unsuccessful in pulling off a scheme. Defense attorneys for years have argued that relying on intended loss under the commission’s guidelines leads to overly harsh sentences that don’t reflect the criminal conduct.
We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” said defense attorney Tama Kudman.
Kudman successfully used the Banks ruling in Florida to persuade a judge that actual losses should only be taken into account when sentencing a lab owner found guilty of billing Medicare for unnecessary genetic tests. Minal Patel billed Medicare for more than $463 million in tests but the actual loss to taxpayers was $187 million.
In the year since the Banks ruling, defense attorneys have had limited success using the decision outside of the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands. In December, a federal judge in Michigan sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan. The judge reasoned that she didn’t have to defer to the sentencing commission because the definition of loss isn’t “genuinely ambiguous.”
In June, a North Carolina federal judge also agreed with the 3rd Circuit decision in supporting a lower sentencing guideline for a man who pleaded guilty to bank fraud against several financial giants, including JPMorgan, Wells Fargo and crypto exchange Coinbase Global Inc.
In other cases, the 1st and 4th Circuits declined to take a position. “This is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits,” the 4th Circuit panel wrote. That’s why some legal experts believe the Supreme Court will need to decide even though it has so far refused to take up the issue.
Judges, prosecutors and defendants have all urged the sentencing commission to make changes. One defendant who is serving 95 years in prison for a cyber financial fraud scheme argued in an email to the commission to get rid of the intended loss interpretation since “it’s not based on fact, but rather off of subjective interpretation or ‘guess work.’”

Some Notable Acquitted Conduct News–

Yesterday, the Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430) was approved 23 to 0. In September, Congressman Cohen introduced the bipartisan, bicameral measure with Representative Kelly Armstrong and Senators Dick Durbin and Chuck Grassley. This legislation would end the unjust practice of judges increasing sentences based on conduct for which a defendant has not been convicted. It will now advance to the full House of Representatives for a floor vote.
So now we know that there is a least one issue that can garner bipartisan and even unanimous support in the U.S. Congress, namely a statutory reform to prohibiting federal punishment based on acquitted conduct. This notable vote committee certainly does not ensure Congress will get this bill to the desk of the President, but it should serve as a strong message to the U. S. Sentencing Commission that it should have bipartisan support for any acquitted conduct reforms it might be considering during its current amendment cycle.

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

Fair Sentencing/Retroactive Sentence Reductions 3,979 Orders Granted to date.
Elderly Offender Home Confinement 1,245 Approved to date.
First Step Act Releases 25,048 granted to date.
Compassionate Releases/Reduction in Sentences 4,632 granted to date.
Population in RRC’s 8,141.
Population in Home Confinement 5,659.

COMMENT:

Another scant week regarding favorable cases in the federal circuit courts this week.

With regard to the USSG Guideline Amendments, we sent out a Special Edition newsletter earlier this week regarding all the new Amendments now in effect. We suggest that you read it carefully to understand better the USSG Amendments. Those motions should be prepared now to avoid the rush. We can help you file them correctly also. If you want to know whether you qualify, we suggest that you opt for a Written Case Evaluation (WCE) ASAP to make that determination. Amendment 814 is now effective. A WCE will also tell you if you have any other relief available. If you believe you have a Dubin, Rahimi, Range/Bruen, Rehaif, Taylor, Concepcion, Ruan, Davis, Earned Time Credit or any other claim and want to see if you may have relief coming should opt for a WCE (WE NO LONGER OFFER FREE LOOKUPS).

For the last 29 years, we have been very successful on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons to mention a few avenues for relief we cover. We also can help you with Earned Time Credits and other specialized motions. The WCE 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 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.