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.

Many appellate cases involve defining words in a law. One would think that is a simple task. Look them up in a dictionary. ¹ But many words can be written to define relatively simple terms. In DePierre v United States the question is how does should “cocaine base” be defined. DePierre wants to define it synonymously with “crack cocaine.” But the clear meaning of “cocaine base” is any form of cocaine that is capable of reacting with an acid to form a salt. This includes not only crack, but also coca paste and freebase. Cocaine base can be contrasted with cocaine hydrochloride (cocaine powder), a salt.

Functionally the main difference between base and cocaine hydrochloride is that cocaine base when heated can be smoked and it works faster than the powder form.

The problem arises as a result of poor drafting in the Anti-Drug Abuse Act of 1986 (ADAA) which set a mandatory minimum of 10 years for fifty grams or more of cocaine base and a mandatory minimum of 10 years for five kilograms or more of cocaine base. (Thus it took 100 times as much cocaine salt to get the same sentence as cocaine base.) ² Furthermore, the statute refers to both cocaine base and cocaine even though they are the same thing. There is a rule of statutory construction that if Congress uses two different term it is referring to two different items. But the court found that in this case they were both referring to cocaine base and they sided with the government against De Pierre.

The Fourth Circuit Court of Appeals held that despite the significant changes in Confrontation Clause interpretation over the past several years hearsay remains admissible at sentencing.

Solomon S. Powell was convicted of mail fraud. He collected money for sale of merchandise over the internet, but he rarely delivered the merchandise. Though eight victims testified at trial at sentencing the court relied upon the investigation of Postal Inspector Evelyn Cross who testified at the hearing that he harmed over fifty people and that there was a loss of more than $200,000. This would have led to a guideline sentence of between 120 and 150 months. In an abundance of caustion the Court found that there were over 10 victims and a loss of $199,000, sentencing him to 102 months. While her report was thorough only the eight victims testified and the rest was based on hearsay.

Powell pointed to a line of Supreme Court cases, beginning with the 2004 case Crawford v. Washington limiting testimonial hearsay to cases where the witness is unavailable and where the defendant has had a chance to cross examine the witness. But the court held that once a person is convicted the right of confrontation no longer exists. The Supreme Court limited Crawford and its prodigy to evidence at trial and absent a change by the Supreme Court there was suffficient precedents to reject the confrontation clause at sentencing. It found that a wide variety of evidence is admissible at sentencing and that traditionally, as long as the evidence is reliable, hearsay has been admissible. As a result it upheld the sentence.

Cedric Henderson, Jr., Donavan Barrington McClune, and Bobby Kirkendoll were convicted in separate matters of crimes involving crack cocaine. They applied to their respective courts pursuant to 18 U.S.C. § 3582(c)(2) for a sentence reduction. Under this section inmates may apply for a sentence reduction, if following their sentencing, the United States Sentencing Commission reduces the guidelines for the offense of conviction. In 2007 the Sentencing Commission reduced by two levels the guideline for most crack cocaine offenses, in order to reduced the disparity in the law between sentences for crack cocaine and powder cocaine. The law gives judges the discretion to reduce sentences after reviewing the factors found in 18 U.S.C. § 3553(a). The section provides the factors a judge must consider in sentencing a defendant.

In resentencing the Court must follow a two step process. First it must consider the defendant’s eligibility under the statute and second it must consider the 3553(a) factors. In the cases of Henderson, McClune, and Kirkendall, all of whom received below guidelines sentences the judges on resentencing said that they had reviewed the 3553(a) factors at the time of sentencing and saw no reason to reconsider the sentence. Since each received a below guidelines sentence during the original sentencing the law allows the judge to give a similar reduction based upon the new guidelines but prior to using his/her discretion the Court must reconsider the 3553(a) factors. Therefore The Fifth Circuit remanded the matters to the trial courts for reconsideration of the factors.