Ali Asad Chandia was convicted of conspiring to provide, material support to terrorists and a foreign terrorist organization. He was convicted for providing support to Lashkar-e-Taiba (“LET”). It was alleged that he attended a LET training camp in Pakistan and that he provided support for Mohammad Ajmal Khan a LET leading during Khan’s trip to the United States. LET is a fundamentalist Muslim organization headquartered in Pakistan which among other goals works for an independent fundamentalist nation in Kashmir. It is on the attorney general’s list of terrorist organizations.

The question in United States v. Chandia is what findings must a judge make in order to sentence Chandia with an enhanced sentence pursuant to Sentencing Guidelines section 3A1.4, the terrorism enhancement. Twice the Fourth Circuit rejected a 180 month sentence claiming that the District Court judge did not properly link Chandia’s action to s violation of 3A1.4. Now on the third shot the appellate court approved the District Court’s 180 month sentence.

The enhancement may be attached to a Federal “crime of terrorism” which is a crime in which “the underlying felony must have been calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The District Court must not only find that the defendant had the specific intent to commit the crime but it must also point to evidence in the record supporting the finding. On the third try the appellate court found that the District Court found sufficient evidence that Chandia knew that LET was a terrorist organization and that Khan was a leader of the organization. That as a result Chandia, “in his actions here and his support, intended to influence or affect government conduct by intimidation or coercion or to retaliate against government conduct.” This time the Fourth Circuit upheld the 180 month sentence.

Theodore J. Schaefer was convicted of possession of child pornography. He was sentenced to 97 months in prison and 10 years of supervised release. On appeal he challenged two conditions of the supervised release, Specifically he challenged provisions stating:

The defendant shall have no contact with children under the age of 18
(including through letters, communication devices, audio or visual devices, visits, electronic mail, the Internet, or any contact through a third party) without the prior written consent of the probation office.

The defendant is prohibited from places where minor children under the age of 18 congregate, such as residences, parks, beaches, pools, daycare centers, playgrounds, and schools without the prior written consent of the probation office.

Schaefer challenged the conditions on the grounds that they violated his constitutional right to parent his children and that the conditions “are not narrowly tailored, or reasonably related to his offense, his history and characteristics, or protection of the public.” He vigorously argued that his conviction was for possession and not distribution of child pornography. ¹ The Eighth Circuit Court of Appeals found that the trial court was within it discretion in imposing the special conditions. Special conditions

must be reasonably related to the nature and circumstances of the offense of conviction, the defendant’s history and characteristics, the deterrence of criminal conduct, the protection of the public from further crimes of the defendant, and the defendant’s educational, vocational, medical, or other correctional needs. . . Second, a special condition also must involve no greater deprivation of liberty than is reasonably necessary to deter criminal conduct, to protect the public from further crimes of the defendant, and to provide for the defendant’s educational, vocational, medical, and other correctional needs. Finally, a special condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. In fashioning a special condition of supervised release, a court must make an individualized inquiry into the facts and circumstances underlying a case and make sufficient findings on the record so as to ensure that the special condition satisfies the statutory requirements.

The Court found no interruption in the parenting process since Schaefer’s children would be over eighteen by the time he got out of prison. Furthermore it found sufficient evidence in the file to support the special conditions. At one point Schaefer talks about selling a friend’s daughter. He also wanted to trade the pornography and would have done so except for a computer glitch. As a result the appellate court upheld the special conditions, noting that the trial judge maintained jurisdiction to vary the conditions as necessary.

A complicated area of the law is whether to run sentences on different counts or different cases concurrently or consecutively. The issue becomes much more difficult when different judges of different courts are sentencing an individual on different charges. The Supreme Court addressed one aspect of the issue last week in Setser v. United States.

Monroe Ace Setser was charged in both Federal and state courts with methamphetamine related charges. The District Attorney also move to revoke a state probation in another case. While the Federal sentencing occurred prior to the state sentencing the Federal judge order that his 151 month Federal sentence run run concurrent with his state methamphetamine sentence but consecutive to the time he would get on his probation violation. The Texas state court threw a curve into the process by ordering the sentence on the five year probation violation to run concurrent with the ten year state methamphetamine case.

Since the state methamphetamine case runs concurrent to the probation violation it is obviously impossible to carry out the Federal sentence mandating that it run concurrent with the state methamphetamine crime but consecutive to the probation violation. The question before the Supreme Court was who gets to decide whether the Federal sentence will run concurrent to the state sentence or consecutive to it. Both Setser and the government argued that the Bureau of Prisons (BOP) should make the decision. The Bureau through its power to decide whether the the Federal sentence should be spent in the Federal Prison or the state prison can make that decision. If the Bureau credits Setser’s time in the state prison against his Federal sentence he will have a de facto concurrent sentence. Otherwise he will have a consecutive sentence.

But the Supreme Court said “no.” It held that the decision of whether a sentence should run concurrently or consecutively is traditionally a judicial decision and it upheld the lower court decision running the cases consecutive to each other.

It should be noted that Selser can challenge the BOP’s refusal to credit his time in state custody administratively and if need be through a writ of habeas corpus.

In Tapia v. United States the Supreme Court held that under Federal statutory law judges can not consider rehabilitation in determining how to sentence a defendant or the length of the sentence. The Ninth Circuit last week in United States v, Grant held that Tapia applied not only to the original sentence but also to violations of supervised release conditions.

Leon W, Grant was convicted of two counts of bank fraud. He was sentenced to two days in jail and five years supervised release. Among the conditions of the supervised release was that he abstain from alcohol and drugs. But it became apparent that he was unable to do so. Eventually the court sentenced him to two years in prison, a sentence significantly above the guidelines, in order that he could be rehabilitated. The Ninth Circuit revoked the sentence and remanded the case for resentencing.

Generally when we incarcerate a person we do it because they intentionally committed an act that violates societal rules. Leon Grant is an addict. The court found that he had no control over his behavior. While he certainly needed rehabilitation, we do not generally deprive an individual of his/her personal liberty for for long periods ¹ for acts for which were not committed intentionally.

While most prisons have rehabilitative programs,they generally do a poor job of rehabilitation. Often they do not have the resources to provide rehabilitation to everyone who needs it. There is a long wait to get into a program and rehabilitation has only a limited effect when people are in a location where they do not have access to drugs or alcohol. The real test occurs when they leave the prison. But by then they no longer have access to the rehabilitative facilities and they often relapse.

The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

Jose Alvarado-Tizoc, Antonio Duran, and Noe Duran, were convicted of conspiracy to distribute more than 400 grams of substances containing
a detectable amount of fentanyl and more than a kilogram of substances containing a detectable amount of heroin. Fentanyl is a prescription synthetic narcotic sold on the streets in a diluted form as a substitute for heroin.

Sentences ranged between 121 and 200 months.

The defendants obtained significant quantities of the drugs and wholesaled them to street vendors who diluted them to usable strengths by adding neutral substances.

One of the factors considered under the Federal Guidelines the in drug cases is the weight of the substances possessed or sold. When it came time to sentence the defendants the judge determined the weight of the drugs as sold on the street to determine the sentence. The defendants appealed claiming the weight of the Fentanyl that they sold to the street dealers was a lot less than the weight of the substances combined with the fillers sold on the street. The Seventh Circuit Court of Appeals agreed and remanded for resentencing.

Defendants won–right? Well not exactly.The court ruled that the sentencing judge could augment the sentence due to the additional potency of fentanyl as compared to heroin. I’m willing to bet that by the time of the resentencing the defendants get approximately the same sentence they got on they initial sentencing. It doesn’t pay for winning!

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

William Freeman entered a “C” plea in Federal Court to possession of crack cocaine. A “C” plea is a guilty plea pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. Under Rule 11(c)(1)(C) the defendant and the government agree on a particular sentence and once the judge agrees to the plea the judge is required to go along with the stipulated sentence.

The agreement between the parties stated that Freeman would get 106 months and that the figure was based on the Guidelines. When the judge sentenced him to 106 months he stated that it was a Guidelines sentence.

Three years after the sentencing the Sentencing Commission retroactively reduced the Guidelines for crack cocaine in an attempt to reduce the disparity between crack and powder cocaine sentences. Freeman applied for a reduced sentence. The government objected on the grounds that he had stipulated to his sentence.

The Supreme Court ruled that the reduction applied to Freeman because while he stipulated to the sentence the stipulation and the sentence was based on the Guidelines so the retroactive change in the Guidelines apply to him.

Alejandra Tapia was convicted in Federal Court of smuggling unauthorized aliens into the United States. The sentencing guidelines indicated a sentence between 41 and 51 months. In sentencing Tapia to 51 months the court stated that it wanted her to serve a sentence long enough for her to be admitted into and to complete the Bureau of Prison’s (BOP) Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program).

On appeal the issue was whether the trial court had the authority to lengthen the sentence based upon the need for rehabilitation.

The governing law is the Sentencing Reform Act of 1984. In determining a sentence the courts are mandated to consider four factors:

“(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

“(B) to afford adequate deterrence to criminal conduct;

“(C) to protect the public from further crimes of the defendant; and

“(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.”

But the courts are also mandated to recognize “that imprisonment is not an appropriate means of promoting correction and rehabilitation.” ¹ While the term “recognize” may be rather weak the Supreme Court found that it was mandatory.

But perhaps the best argument against extending sentences to accommodate rehabilitation is the story of Alejandra Tapia, herself. Despite the judge’s giving her an extended sentence ² in order that she could complete the RDAP program during her interview with BOP staff after she was sentenced she stated that she did not want to enter the RDAP program and she was not assigned to the program.

It is certainly possible, as Justice Sotomayor suggested that on resentencing that she will get the same 51 month sentence.

For the fourth time in five years the Supreme Court has attempted to interpret the residual clause of the Armed Career Criminal Act (ACCA). The ACCA mandates a minimum sentence of fifteen years to anyone charged with possession of a gun who has three prior convictions for either a violent felony or serious drug offenses. The residual clause attempt to define what felonies are considered violent. It reads:

“any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In James it held that a violent felony is one that is comparable to the violence “posed by its closest analog among the enumerated offenses.” In Begay the court ruled that dangerous felonies are “purposeful, violent,and aggressive.” Chambers applies both the “risky-as-the-least-risky test and the “purposeful, violent, and aggressive.” The “risky-as-the-least-risky test compares the risk of violence to the least risky of the named felonies in the residual clause (burglary, arson, or extortion, involves use of explosives). Last week in Sykes v. United States the Supreme Court held that felony vehicle flight is a violent felony for purposes of the ACCA because “[t]he residual clause imposes enhanced punishment for unlawful possession of the firearm when the relevant prior offenses involved a potential risk of physical injury similar to that presented by burglary, extortion, arson, and crimes involving use of explosives.”

The Supreme Court uses a categorical approach when determining if a prior conviction is a violent crime for purposes of the ACCA. By this it means that it does not look at the alleged conduct leading to the conviction to determine if it involved a potential risk of physical injury. Rather it looks at the elements of the crime to make the determination. Sykes was convicted of possession of a firearm by a convicted felon He has at least three prior convictions. Two of the convictions were for robbery. These are clearly violent felonies. But to sentence him under the ACCA to a minimum of fifteen years there must be three prior violent felonies. He also has a prior conviction for vehicular flight to avoid and arrest. The issue before the Supreme Court was whether flight is a crime of violence. Using various statistics the Supreme Court found that it was a crime of violence because the risk of someone getting injured during flight is greater than the risk of physical injury in either arson or burglary, two of the offenses listed in the ACCA.

The problem with this as Justices Scalia and Kagan point out in dissents ¹ is that vehicular flight is not similar to any of the named offenses. Justice Kagan points out that Indiana,like other states, has several different flight offenses. The particular statute under which Sykes was arrested does not require a serious risk of injury. Other sections do. Justice Kagan said that since the normal behavior leading to a conviction under the section of Sykes conviction does not require violence. Therefore convictions under this section should not be considered violent under the ACCA.

Justice Scalia stated that despite all of the efforts to interpret the residual clause, no explanation has been able to clarify the section. The constitution requires that laws “give a person of ordinarily intelligence fair notice” of what behavior violates the law. This is particularly necessary with criminal laws where defendants may be facing a significant loss of freedom. According to Justice Scalia the clause is so vague and impossible to understand that it violates the constitutional standard for notice. He would limit enforcement of the statute to the name offenses. Of course Congress can amend the statute to add additional offense or otherwise make it more clear.