I previously posted about this case here. I pointed out how the Defendant argued that a mere movement of 9 feet cannot be what Congress had in mind when they passed this serious sentencing enhancement for robbers who force a victim to go with the criminal.

In rejecting the Defendant’s claims, the Supreme Court noted that this particular language was put into the bank robbery law in 1934. Congress enacted the forced-accompaniment provision in 1934 after “an outbreak of bank robberies committed by John Dillinger and others.” So, like a good strict constructionist that he is, Justice Scalia, writing for the Court, looked to contemporary uses of the phrase “to accompany”. “It was, and still is, perfectly natural to speak of accompanying someone over a relatively short distance, for example: from one area within a bank ‘to the vault’; ‘to the altar’ at a wedding; ‘up the stairway’; or into, out of, or across a room”, according to Justice Scalia. His examples all came from newspapers from that era.

The Defendant made a series of arguments based on the structure of the law, and how Congress could not have envisioned a life sentence simply because a person was moved 9 feet during a robbery escape gone awry. Unimpressed with this argument, Justice Scalia wrote: “The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that. It is simply not in accord with English usage to give ‘accompany’ a meaning that covers only large distances.”

While this case is rather rare, I nevertheless applaud the defense attorneys who kept plugging and tried to save their client some time.

Larry is not only unlucky, he also seems to be like too many criminals, bad at his work. He botched a bank robbery in 2008 in North Carolina. Fleeing the scene, Whitfield entered the home of a 79-year-old woman, telling her he needed a place to hide. He directed the woman, who was upset and crying, to move with him from her living room to another room some nine feet away.

A conviction under the federal bank robbery statute carries a maximum sentence of 20 years in prison, but no minimum sentence, pursuant to 18 U.S.C. § 2113(a). If the bank robber forces another person “to accompany him” in committing the robbery or while in flight, however, that additional offense carries a minimum sentence of ten years in prison and a maximum sentence of life imprisonment. 18 U.S.C. § 2113(e). The question that the Supreme Court grappled with yesterday was whether § 2113(e)’s forced-accompaniment offense requires proof of more than a de minimis movement of the victim.

According to published reports, the oral argument had a spirited debate over the meaning of the word “accompany.” Justices Scalia and Ginsburg noted that the word often is often associated with movements over short distances: Scalia “accompanies” his wife to the table. Ginsburg described how a nurse might “accompany” a patient to the Intensive Care area. Most of the Court seemed to agree that the word is a rather poor choice by Congress in an effort to distinguish more culpable robbers from those less worthy of lengthy punishment. However, Justice Scalia reminded the others that courts are usually not supposed to fix poor drafting by Congress.

Chief Justice Roberts continues to show that he appreciates the real life consequences of the cases before the Supreme Court. Roberts suggested that forcible movements during bank robberies were commonplace, giving the government unwarranted power in plea negotiations. “The prosecutor is armed with another 10 years automatically in his pocket. And then you use that to extort a plea bargain of, you know, six years, from somebody who might otherwise have wanted to go to trial.”

Lawyers often seem overly concerned with words, it is the lifeblood of our work. I applaud Larry Whitfield’s legal team for taking his case to the highest court in the land. A decision is expected by next Spring.

A Pennsylvania woman learned that her husband had impregnated her former best friend. The woman put some caustic chemicals on the pregnant woman’s door handle. The victim was slightly burned on her hand, which she remedied by washing. Sounds like a state law case, right? Wrong! Some ambitious federal prosecutors brought a federal case against the Defendant for violating a 1998 statute that was designed to implement US treaty obligations concerning chemical weapons. A divided Supreme Court reduced the scope of this statute. The majority ruled that Congress could not have intended to make it a federal crime – with global implications – for a woman to try to poison her husband’s lover.

Although the Defendant may have violated a number of state laws, local prosecutors only went after her for harassing telephone calls and letters, and refused to accuse her of assault. Then the feds barged in. She worked out a deal by which she pleaded guilty to the federal crime of using a “chemical weapon,” on condition that she could later challenge the prosecution. Fortunately for her, the legal team representing the Defendant convinced the Supreme Court that the law did not even apply to what she did.

The case had attracted notice because it seemed to pose the ultimate question of just how far Congress could go, in regulating activity entirely inside the U.S., when it was enacting a law to carry out a global obligation that the federal government had assumed under a treaty. The Court dodged that issue, invoking the traditional practice of avoiding constitutional issues if not necessary to a decision, and chose to deal only with the question of whether Congress had meant to pass a law that was so nearly limitless that it would reach “a purely local crime” growing out of “romantic jealousy.”

Again, I never cease to be amazed at how federal prosecutors will waste tax dollars using unique federal laws in going after what are really local crimes. Anyone facing such a situation needs a legal team willing to fight, that much is for certain.

Justus Rosemond took part in a drug deal where either he or another participant fired a gun. Federal prosecutors charged everybody involved in the deal with shooting the weapon, and their theory was either that Rosemond himself shot the weapon, or that he “aided and abetted” the shooter. That’s crucial because an aider and abettor is just as responsible as the actual shooter, and would get the same mandatory additional 5 or 7 years tacked on to a sentence.

The trial judge told the jury that Rosemond was guilty of aiding and abetting the gun crime if he (1) “knew his cohort used a firearm in the drug trafficking crime” and (2) “knowingly and actively participated in the drug trafficking crime.” The second alternative was crucial, because a jury could then find Mr. Rosemond guilty of the shooting merely by finding that he wanted to be part of the drug crime, regardless of whether Rosemond had any knowledge of or intention that a gun would be part of the deal.

In reversing his conviction, the Supreme Court sort of cut the baby in half. They rejected the idea that an aider and abettor had to have exactly the same “intent” as the shooter. However, they also ruled that there must be proof that when a defendant aids and abets a gun violation prosecutors must prove that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime’s commission. An active participant in a drug transaction has the intent needed to aid and abet a gun violation when he knows that one of his confederates will carry a gun. This must be advance knowledge-meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away.

As noted above, the trial judge did not tell the jury that Rosemond needed to know in advance that one of his cohorts would be armed before he could be held accountable under aiding and abetting liability. Instead, the judge merely told the jury to consider whether Rosemond “knew his cohort used a firearm,” and the trial judge did not direct the jury to determine when Rosemond found about the other person’s gun. As a result, they reversed his case and sent it back to the court of appeals for more consideration.

As I mentioned in my earlier post on this issue, this is precisely the same issue I won 20 years ago. In that case, I was able to shave off 20 years from my client’s sentence. Let’s hope that other attorneys can use this recent ruling to help their clients if the situation fits the facts.

In this recent case, the Supreme Court looked for the meaning of the term “result from” in a case where the district court imposed a 20-year mandatory minimum sentence upon a Defendant for the sale of one gram of heroin since a buyer’s death had “result[ed] from” the use of the heroin as one of several drugs he consumed that contributed to the death. The Defendant (a man named Burrage) had sold drugs to Banka, who died after using both Burrage’s heroin and several other drugs. Medical experts at trial could not say whether Banka might have died from using the other drugs even if he had not taken the heroin, but the experts all though that the heroin was a contributing cause of death.

The trial judge refused to go along with the Defendant’s argument the term “result from” is the same as a “but-for” standard. The Defendant basically said that the mandatory 20-year sentence only is applied when “but for” the Defendant’s drugs, the drug user would not have died. Both the trial court and the court of appeals rejected that argument, ruling that the phrase means that Burrage’s heroin only needed to be a “contributing cause” of the death.

In a unanimous opinion, the Supreme Court reversed, ruling that the term “result from” should be construed in its “ordinary meaning” to require a “but-for” standard of causation — that the harm would not have resulted “but for” the defendant’s conduct. Even if the drug sold by Burrage was a “contributing factor” to the drug user’s death, that was not enough for imposing the mandatory 20-year sentence.

Like all cases we keep tab as on, this opinion may have impacts beyond drug cases. The issue of what consequences resulted from a Defendant’s conduct arises in murder and assault cases. Additionally, it sometimes comes up in our white-collar cases. For example, this concept arises when determining the amount of loss or harm for sentencing purposes. In the end, it seems that in federal criminal law the term “result from” now will have a more narrow meaning than previously thought.

Mr. Gabrion committed brutal murders in Michigan. One of the bodies surfaced from the bottom of Oxford Lake. A national forest boundary line ran through the part of the lake. The body was found 227 feet inside the boundary line of federal property.

Michigan has never used the death penalty to execute a person. The State abolished the death penalty totally in 1846.

The federal government re-enacted the Death Penalty in a series of laws that were enacted in the late 1970’s and early 1980’s. Therefore, if a person committed a potential death penalty eligible crime in a state like Michigan, they could not be put to death if the local prosecutors handled the matter, but might face the death penalty if the federal government had enough of a connection to take the case over.

In Mr. Gabrion’s case, the victim’s body was 227 feet inside federal land, so the case was prosecuted in federal court. His lawyers wanted the judge to tell jurors that if the body had been found on State land, then he could not have been put to death. The judge at trial and the majority of judges on appeal rejected this idea, and upheld the death sentence that was imposed on Gabrion. However, there was a spirited dissenting opinion, and there is an outside chance that the United States Supreme Court might take the case for review because of the importance of the issues.

This case involved a brutal crime, but the underlying principles apply to other criminal cases we work on. Over the years I raised a series of challenges to federal cases, arguing that there was not enough of a connection to interstate commerce so as to allow the matter to be brought in federal court. I won a few of these, lost others, but in every one I feel that we put our client’s case in a better posture. That is why it’s important that when looking for a criminal defense attorney, folks should make sure that the lawyer is creative enough to use any potential argument for the person accused of a crime.

First, let’s look at the recent furor over the IRS practices. There has been a report by the Treasury Inspector General for Tax Administration Office of Audit, and this document shows how “Early in Calendar Year 2010, the IRS began using inappropriate criteria to identify organizations applying for tax-exempt status to review for indications of significant political campaign intervention.” This Report was only issued a couple of days ago, but it caused a firestorm. The other day President Obama stated that the Reports findings are “intolerable and inexcusable,” and last night he fired the Acting IRS Commissioner. The Report made several recommendations, including “develop training or workshops to be held before each election cycle including, but not limited to, the proper ways to identify applications that require review of political campaign intervention activities.”

For starters, it is not really all that controversial to stand up and say that politics do not belong in the agencies of our government. Whether it is the Department of Justice making decisions on what crime to prosecute, or the Securities and Exchange Commission excersizing discretion in making cases against some but not all securities fraudsters, when politics clearly is driving these discretionary decisions, someone should immediately stop this from happening. We all know about internal compliance programs in the corporate world, so maybe we need to beef up compliance programs and monitoring within the government world.

What truly startles me is that this process of targeting certain groups has been going on for years, but it only becomes a big issue when politically conservative organizations and their outsized ability to scare elected officials are targeted. No one uttered a peep back in the 1980’s when prosecutorial discretion in bringing federal drug cases decimated an entire generation of young African American men, with wholesale use of the draconian crack cocaine drug laws and their utterly unfair mandatory minimum penalties that were 100 times more stringent than penalties for powder cocaine that was preferred by most White Americans who used the drug. I never heard the political class up in arms when federal prosecutors used harsh penalties from the Armed Career Criminal Act of 1986 to take over street crime cases and hand out life or near-life sentences when some poor mope merely had a gun and was doing yet one more stupid thing. Nobody said anything when federal prosecutors over the past 15 years have engaged in wholesale prosecutions of aliens, imposing harsh sentences on people who may have committed crimes but who have no political power in that they are from another country.

I always tell young lawyers that federal criminal cases are ALWAYS political. Prosecutorial discretion is always exercised with an eye towards the ballot box. While I am glad that the nattering nabobs are at least discussing the concept that prosecutorial discretion should be even-handed, I just wish they would be as loud when it involves folks with less political clout.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.

Earlier cases all decided that that police can conduct such tests once an individual is convicted. (It’s true, your Blogger lost one of these early cases, back in 2006). The King case asks whether the same is true for people arrested but not yet tried or convicted.

Here’s what happened. The police arrested Mr. King in on assault charges. Using state law, they swabbed King’s cheek to get a DNA sample, and then submitted the sample to the federal DNA database to see if there were any matches. The database eventually matched King’s DNA to biological material from a rape six years earlier. The prosecutors used the DNA match against Mr. King, who was convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals threw out King’s conviction. The state court noted that King was presumed innocent at the time of the initial arrest and that his DNA was not taken to prove that charge. The Maryland court held that the DNA collection was nothing more than a state fishing expedition for anything prosecutors could catch.

Again, this is a never-ending debate, encompassing the tension between personal privacy and the desires of Twenty-First Century crime fighters. We tend to forget that these cases almost always arise in the context of a seemingly guilty person’s appeal of a horrible crime. However, if they can take DNA from a “bad” person, they can do the same thing to a “good” citizen who is falsely arrested. It does not take a lot of imagination to come up with scenarios where DNA can later be used against this “good” person, and if Mr. King loses this case, that will almost certainly happen.

Mr. Friske lives in Wisconsin, but his friend (Erickson) got busted in Florida for drug crimes. Law enforcement listened to calls Erickson made from jail to Friske where he asked the latter to do a “repair job” and remove “three things” buried near Erickson’s pool. Agents got there before Friske, and found $375,000 buried in that location. Later, they observed Friske coming away from the pool area, covered in dirt. Friske made some baloney statements to the police, and later conceded he was just “trying to help a friend.”

The government indicted Friske for attempting to obstruct an official proceeding by attempting to hide and dispose of assets involved in a forfeiture case, in violation of 18 U.S.C. §1512(c)(2). The Eleventh Circuit joined other appellate courts by holding there is a “nexus” requirement in this statute which requires a connection between the obstructive conduct and the proceeding in question. Stated another way, “if the defendant lacks the knowledge that his actions are likely to affect the judicial proceeding, he lacks the requisite intent to obstruct.”

The Eleventh Circuit then turned to the evidence in Mr. Friske’s trial. They noted that he certainly acted “suspiciously” in digging around Erickson’s pool shortly after getting the recorded calls. However, there was not one “scintilla” of evidence that in performing these suspicious acts Friske knew of a forfeiture proceeding against Erickson’s property. As a result, the appellate court reversed the convictions based on the insufficiency of the evidence.

We are always pleased to see courts uphold the law and require that prosecutors prove their case. Likewise, we think this ruling makes great sense, so as to prevent the conviction of innocent persons.

The concurring opinion by Chief Judge Kozinski eloquently describes the reality of many white-collar criminal prosecutions that we see in our federal defense practice. All too often, federal prosecutors go after defendants in prosecutions that would more appropriately be located on the civil docket.

The full opinion in Goyal is available here, but the Chief Judge’s concurrence is worth reprinting in full:

This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant’s personal and professional life. The defendant’s former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn’t prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds. See Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir. 2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C. Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. § 1001 creates risk of prosecutorial abuse).

This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) (“[C]riminal punishment usually represents the moral condemnation of the community . . . .”); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir. 1970) (“[T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community . . . .”). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted.

Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn’t commit. But not everyone is so lucky. The government shouldn’t have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.

This amendment clarifies the remediation efforts required for effective compliance and ethics programs used by organizations. The Guidelines now suggest that defendant organizations should provide restitution and other forms of remediation, self-report, and cooperate with authorities. The organization should also ensure the program is effective, perhaps by including the use of an outside professional advisor.

The amendment also creates a limited exception to the general prohibition against applying a 3-level decrease for having a program when high-level personnel are involved in the offense. The organization may receive the decrease if:

1. The people responsible for the compliance and ethics program have direct reporting obligations to the board;

2. The program detected the offense early;

3. The organization promptly reported the offense to the authorities; and 4. No one with operational responsibility for the compliance and ethics program participated in, condoned, or was willfully ignorant of the offense.

This amendment responds to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. The Act created a new offense at 18 U.S.C. § 249 for injuring any person because of actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. That offense is now referred to §2H1.1 (Offenses Involving Individual Rights). It also broadened the definition of “hate crime” to include crimes motivated by actual or perceived “gender identity.” §3A1.1 (Hate Crime Motivation or Vulnerable Victim) gained an application note to account for the expanded definition.

The Act created a second new offense at 18 U.S.C. § 1389, prohibiting attacks on members of the military, which is now referred to §§2A2.2 (Aggravated Assault), 2A2.3 (Minor Assault), and 2B1.1 (Theft, Property Destruction, and Fraud).

This is the only amendment this year to expand on the sentencing guidelines. Unlike years past, most of the amendments this year reduce the severity of the sentencing guidelines and applicable sentencing ranges. Professor Doug Berman addressed the symbolic importance of this change in direction in this post at the Sentencing Law and Policy Blog. We hope that the future holds a continued focus on revising the guidelines for fairness.

The third amendment to the Sentencing Guidelines addresses judges’ discretion to grant a downward departure for cultural assimilation by immigrant defendants convicted of illegal reentry. The 11th Circuit upheld departures on this basis in U.S. v. Sanchez-Valencia in 1998. Some other circuits have declined to rule on this issue, so the amendment was passed in order to promote uniformity in sentencing.

The amendment adds an application note to § 2L1.2 providing that a downward departure may be appropriate on the basis of cultural assimilation if the defendant:

• Resided continuously in the United States from childhood;

• Illegally re-entered or stayed in the U.S. because of cultural ties from that childhood; and

• A departure is not likely to increase the risk to the public from further crimes of the defendant.

The sentencing court is directed to consider the following factors:

(1) the age in childhood at which the defendant began residing continuously in the United States,

(2) whether and for how long the defendant attended school in the United States,

(3) the duration of the defendant’s continued residence in the United States,

(4) the duration of the defendant’s presence outside the United States,

(5) the nature and extent of the defendant’s familial and cultural ties inside the United States, and the nature and extent of such ties outside the United States,

(6) the seriousness of the defendant’s criminal history, and

(7) whether the defendant engaged in additional criminal activity after illegally reentering the United States.”

The Sentencing Guidelines now recognize that certain characteristics of the defendant may be relevant in calculating sentencing ranges, including age, mental and emotional conditions, physical condition, and military service. This amendment was in response to sentencing judges increasingly using variances, rather than relying on departure provisions.

The amendment revises the introductory commentary to Chapter Five, Part H to explain that its purpose is to provide a framework for addressing specific offender characteristics consistently to avoid unwarranted sentencing disparities. It then amends policy statements §§ 5H1.1 (Age), 5H1.3 (Mental and Emotional Conditions), and 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction) to provide that age; mental and emotional conditions; and physical condition or appearance, including physique, “may be relevant in determining whether a departure is warranted, if [the offender characteristic], individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.” It also amends § 5H1.11 (Military, Civic, Charitable, or Public Service; Employment-Related Contributions; Record of Prior Good Works) to state that military service “may be relevant in determining whether a departure is warranted, if the military service, individually or in combination with other offender characteristics, is present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines”.

The new authorization to consider age in some cases will help white-collar defendants, who often are older than those convicted of other federal crimes. Judges may consider youth as well, which will be most helpful in drug cases. While the amendments direct judges not to give these specific offender characteristics excessive weight, we are pleased that the Commission has finally recognized that they are relevant.

The defendant, a man of many names whom the court referred to as Emmanuel, is the American born-and-raised son of Charles Taylor, a former president of Liberia who is currently on trial for crimes against humanity in the Special Court for Sierra Leone. President Taylor put Emmanuel in charge of the “Anti-Terrorism Unit,” which was known in Liberia as the “Demon Forces.” In that role, Emmanuel tortured many individuals between 1999 and 2002. Twelve pages of the Court’s 87-page opinion recount horrifying details of that torture.

The Court justified the application of § 924(c) to crimes of violence committed extraterritorially by arguing that the plain language of § 924(c) provides for its application to any crimes that “may be prosecuted in a court of the United States.” Because the Torture Act, which applies extraterritorially, may be prosecuted in federal courts, the Court reasoned, “a § 924(c) charge can arise out of extraterritorial conduct that is found to be in violation of the Torture Act.”

In so holding, the Court glossed over the general presumption that statutes apply only domestically, with extraterritorial effect only where congressional intent is clear. Without citing any case law approving the application of § 924(c) to conduct outside the Unites States, the Court distinguished U.S. v. Small, a Supreme Court case holding that the word “any” in a different federal criminal statute could not overcome that Congress normally legislates with only domestic concerns in mind.

We believe this case would be a good candidate for the Supreme Court to grant certiorari if Emmanuel appeals this decision. If that happens, we will provide an update on the case.

The full opinion in U.S. v. Belfast is available here.

The lengthy majority opinion began with an account of Mr. Irey’s criminal conduct and case. In short, Mr. Irey repeatedly traveled to Cambodia and China, where he bought underaged Cambodian girls to abuse in horrific ways that the Court said set Mr. Irey apart from “many examples of man’s inhumanity” that steadily flow through the Court of Appeals. During that abuse, he produced “some of the most graphic and disturbing child pornography that has ever turned up on the internet.” He later distributed those images, which have become widely known as “the Pink Wall series.” He was charged with and pleaded guilty to one count of violating 18 U.S.C. § 2251(c), which prohibits producing such images of child pornography elsewhere, then transporting them into the United States.

Under the Sentencing Guidelines, the adjusted offense level for Mr. Irey’s conduct would have led to an advisory sentence of life imprisonment. However, the statutory maximum for his crime as charged was 30 years. For that reason, the Guidelines range was 30 years.

At sentencing, the defense introduced the reports and testimony of two experts in the fields of psychology and psychiatry to address Mr. Irey’s diagnosis of pedophilia. The court also heard from Mr. Irey’s friends and family, who characterized him as a “hero.” The government did not introduce any experts or other witnesses. The sentencing judge focused on Mr. Irey’s diagnosis and otherwise good character in sentencing him to 17½ years in prison, followed by a lifetime of supervised release.

The majority opinion extensively reviewed the history of sentencing law, concluding that it must apply an abuse of discretion standard to its review. The Court held (and the dissenting judges disagreed) that an appellate court may, in its review, itself weigh the 18 U.S.C. § 3553(a) factors to be used in imposing a sentence to determine whether the district court’s balancing of the factors was substantively unreasonable. Based on its own protracted analysis of the § 3553(a) factors, the Court held that the district court’s major variance from the Guidelines sentence was substantively unreasonable.

While the sickening facts in this case make a 17½ year sentence surprising, we worry that the law that the Eleventh Circuit had to make to substitute its reasoning for the district court judge will negatively impact sentencing decisions in this circuit. As Paul Kish commented to the Daily Report, “It is a message to district judges that there are boundaries beyond which you cannot go or you will incur the wrath of certain judges whose views differ from yours.” Judges will be less likely to stray from the Guidelines, despite their advisory status since U.S. v. Booker.

The full opinion in U.S. v. Irey is available here, along with concurring and dissenting opinions, totaling more than 250 pages.

The Daily Report article regarding this case is available here.

The major features of the law include the following:

• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.

• The ten-year mandatory minimum sentence now applies to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.

• The Act eliminates a five-year mandatory minimum for simple possession of crack cocaine.

• The Act increases financial penalties for major drug traffickers.

• Within 90 days, the United States Sentencing Commission (USSC) must increase the sentences under the advisory Sentencing Guidelines for defendants using violence in drug trafficking crimes and emphasize certain aggravating and mitigating factors.

• The Comptroller General must report to Congress on the effectiveness of drug court programs.

• In five years, the USSC must report to Congress on the impact of the law’s changes to cocaine sentencing law.

The full text of the Act is available here.

The Original Sentence and Appeals In 1997, Gilbert was convicted of a crack cocaine offense and sentenced as a career offender under § 4B1.1 based upon previous convictions for possessing crack with intent to sell and carrying a concealed firearm. Under the then-mandatory Sentencing Guidelines, the enhancement increased his Guidelines range from 151-188 months to 292-365 months. Gilbert argued that carrying a concealed firearm was not a crime of violence, but the district court judge disagreed and, stating that he thought the sentence was too high, reluctantly sentenced Gilbert to 292 months. On appeal, the Eleventh Circuit held that carrying a concealed firearm was a crime of violence for purposes of the career offender guideline. Gilbert’s pro se § 2255 motion was denied in 1999, all post-conviction options now exhausted.

Legal Developments in 2008 In 2008, the Supreme Court decided Begay v. United States, holding that under the Armed Career Criminal Act (ACCA) the term “violent felony” applies only to crimes that are similar in kind and degree of risk to those expressly listed in the statute. That same year, the Eleventh Circuit applied the Begay analysis in United States v. Archer, abrogating its holding in the 1998 Gilbert decision. The Court held that “the crime of carrying a concealed firearm may no longer be considered a crime of violence under the Sentencing Guidelines.” Also in 2008, Amendment 706 provided a two-level reduction in base offense levels for crack cocaine offenses and was made retroactive.

In response to these developments, the district court sua sponte ordered the parties in Gilbert’s case to file responses regarding eligibility for a sentence reduction. The government argued that Gilbert was not entitled to any relief under Begay and Archer because a second § 2255 motion is permissible only where new evidence is discovered or the Supreme Court makes a previously unavailable constitutional law retroactive. The government also insisted that Amendment 706 could not apply because Gilbert was sentenced under the career offender guideline. The district court reluctantly agreed.

The Issue Before the Eleventh Circuit Gilbert filed a motion to reopen his original § 2255 motion, suggesting that the court could treat it as a motion for relief under § 2241, which provides relief when a petitioner can prove actual innocence of the crime for which he was convicted. The district court denied his motion, but granted a certificate of appealability. The Eleventh Circuit held that the “savings clause” of § 2255 permitted relief under § 2241 under the authority of Wofford v. Scott and the doctrine of “actual innocence.”

The “savings clause” of § 2255 permits traditional habeas corpus relief under § 2241 where a § 2255 motion is inadequate or ineffective to test the legality of detention. In Wofford, the Eleventh Circuit held that the savings clause applies in the rare case when (1) the claim is based upon a retroactively applicable Supreme Court decision; (2) the holding of that decision establishes that the petitioner was convicted for a nonexistent offense; and (3) circuit law foreclosed the claim when it should have been raised.

The government argued that Gilbert failed to meet the second requirement: that he was convicted for a nonexistent offense because the career offender guideline was not a separate offense. The Court disagreed, applying the Supreme Court’s analysis in Sawyer v. Whitley that a sentencing enhancement based upon proof of statutory aggravating factors establishes a separate offense and raises the possibility that a defendant might be actually innocent of that offense. The Court extended Sawyer to the career offender context, commenting that, “To accept the government’s position that the law provides Gilbert no remedy for the clear wrong that has been done to him is to elevate form so far over substance as to make unrecognizable the concept of fair play and due process.”

Gilbert has served 171 months of his sentence. The maximum sentence he could have received for his underlying conviction was 188 months. He is likely entitled to an amended Guideline range of 130-162 months under Amendment 706, so “he is, in a very real sense, presently serving his illegal enhancement.” The Court vacated Gilbert’s sentences and remanded for resentencing. In addition, the Court issued a separate order to expedite issuance of the mandate.

The recent Eleventh Circuit opinion in Gilbert v. United States is available here. The Supreme Court’s opinion in Begay is available here. The Eleventh Circuit’s opinion in Archer is available here.

We have discussed cases applying the Begay analysis at the following posts:

Chambers (Supreme Court: failure to report to a penal institution is not violent felony)

Lee (Eleventh Circuit: walkaway escape is not violent felony)

Harris (Eleventh Circuit: fleeing from police at high speed is violent felony)

Hunter (Eleventh Circuit: possession of firearm is not violent felony under Archer, but providing no relief from illegal sentence)

The Eleventh Circuit held that such a sentence “does not surpass constitutional bounds” under Harmelin v. Michigan, a Supreme Court case that was never brought to Judge Martin’s attention in the lower court. In reversing the District Court decision that Farley’s mandatory sentence would be grossly disproportionate to his crime, the Eleventh Circuit analyzed Harmelin in detail. The Court emphasized that, under Harmelin, “outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare” and noted that the Eleventh Circuit “has never found a term of imprisonment to violate the Eighth Amendment.” Harmelin also held that the mandatory nature of a penalty is not an Eighth Amendment issue.

The Eleventh Circuit stressed the gravity of crimes involving sexual abuse of children. Incredibly, the Court compared the fiction of the child’s existence to the seizure of drugs by police: according to the Court, in both cases, the defendant is unable to inflict harm through no fault of his own.

For more information on the details of this case, Judge Martin’s decision below, and the Eleventh Circuit opinion, this Daily Report article discusses the case at length.

The Eleventh Circuit’s 112-page opinion in U.S. v. Farley is available here. We should caution that the opinion contains a fair amount of graphic detail.

This case involved the interpretation of 18 U.S.C. § 3624(b)(1), which states:

[A] prisoner who is serving a term of imprisonment of more than 1 year other than a term of imprisonment for the duration of the prisoner’s life, may receive credit toward the service of the prisoner’s sentence, beyond the time served, of up to 54 days at the end of each year of the prisoner’s term of imprisonment, beginning at the end of the first year of the term, subject to determination by the Bureau of Prisons that, during that year, the prisoner has displayed exemplary compliance with institutional disciplinary regulations. … [C]redit for the last year or portion of a year of the term of imprisonment shall be prorated and credited within the last six weeks of the sentence.

Two federal prisoners argued that the BOP has been interpreting the good time provision incorrectly, resulting in prisoners serving longer sentences than intended by Congress. The Court, using an example 10-year sentence with maximum good time credits earned, evaluated three distinct methods of calculating good time: the method currently used by the BOP, the method proposed by the prisoner petitioners, and a third method supported by the dissent.

The BOP’s method, which the Court upheld, interprets “term of imprisonment” in the statute to mean “entire imposed sentence” in some places, but “time actually served” when calculating good time. The BOP sets earned time aside at the end of each 365-day period. When the time remaining in a sentence minus earned time equals less than one year, the BOP applies a 54/365 ratio to prorate that last year and determine the prisoner’s release date. In the Court’s 10-year example, the prisoner receives 470 days of good time credit under this method.

The petitioners’ method is the most simple, interpreting “term of imprisonment” as “entire imposed sentence” throughout the statute. The petitioners would have BOP add 54 days of good time credit for each year in the imposed sentence. For a sentence of 10 years, the prisoner would receive 540 days of good time credit. Both the majority and dissenting justices rejected this method as irreconcilable with the statute.

The dissent’s method interprets “term of imprisonment” consistently as “the span of time that a prisoner must account for to obtain release.” This method would count each year’s good time credit toward the next year, so some “years” of a prisoner’s term may be completed in less than 365 days. In the 10-year example, this approach gives a prisoner a maximum of 533 days of good time credit.

Although the dissent’s approach is the most consistent use of the statutory text, makes the most logical sense, and would save taxpayers “untold millions of dollars,” the majority “conclude[d] that the Bureau’s method reflects the most natural reading of the statute.”

Justice Breyer delivered the opinion and Justice Kennedy issued the dissenting opinion, joined by Justices Stevens and Ginsburg. The opinion and dissent in Barber v. Thomas are available here.