U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of December 26-30, 2022--

Supreme Court Happenings for the Week ending December 30, 2022 –

The Justices will have their next conference on January 6, 2023.

Favorable Federal Circuit Opinions for the Week of December 26-30, 2022 –

2nd Circuit

United States v. Blaszczak, et al., (Nos. 18-2811, 18-2825, 18-2867, 18-2878) (2d Cir. December 27, 2022)– Appeals, following vacatur and remand by the United States Supreme Court for further consideration, in light of Kelly v. United States, 140 S. Ct. 1565 (2020), of this Court's prior affirmance of judgments convicting some or all of the defendants on substantive counts of conversion of government property in violation of 18 U.S.C. § 641, wire fraud in violation of 18 U.S.C. § 1343, and securities fraud in violation of 18 U.S.C. § 1348; and convicting certain of the defendants on various counts of conspiring to engage in conduct violating one or more of the above sections, all originating from misappropriation of confidential information from the Centers for Medicare & Medicaid Services ("CMS"). On this remand: (A) defendants contend that their argument that the CMS information at issue does not constitute "property" or a "thing of value" within the meaning of the above statutes is supported by the Supreme Court's decision in Kelly; (B) the government, concurring in that contention, confesses error as to the substantive counts and as to a count charging only conspiracy to violate §§ 1343 and 1348 (Count Two); and it agreed that either the defendants' convictions on those counts should be reversed, or the cases should be remanded to the district court so that the government can dismiss those counts. Accordingly, the Court vacated the convictions on those two counts and remanded for such further proceedings as may be appropriate.

4th Circuit

United States v. Shivers, (No. 21-4091)(4th Cir. December 27, 2022)-- Shivers appealed his sentence for Hobbs Act robbery, asserting that the district court erred in applying the U.S.S.G. § 3C1.2 sentencing enhancement for reckless endangerment during flight when he discarded a loaded firearm in view of pursuing law enforcement officers. The Court agreed with Shivers that the record does not reflect sufficient evidence that he created a substantial risk of death or serious bodily injury to another person when he fled from police. Therefore, the district court clearly erred by applying the enhancement. Further, the Court found that this error was not harmless because the district court declined to state that it would have applied the same sentence regardless of the enhancement, although it was asked to do so. Accordingly, the Court vacated Shivers’ sentence and remanded to the district court for resentencing without application of the § 3C1.2 enhancement.

8th Circuit

United States v. Pumpkin, (No. 20-2743)(8th Cir. December 30, 2022)– Pumpkin and Moses Crowe were convicted of committing a carjacking resulting in serious bodily injury. Under a separate count, they were convicted of using and discharging a firearm during and in relation to a crime of violence, the carjacking. Crowe was also convicted of unlawful possession of a firearm as a convicted felon. Pumpkin and Crowe appealed and raised several issues. The Court concluded that the convictions for discharging a firearm during and in relation to a crime of violence must be reduced to convictions for simply using a firearm during the carjacking. The Court vacated the convictions under § 924(c)(1)(A)(iii) and ordered them reduced to convictions under § 924(c)(1)(A)(i). Because the firearms convictions affected the terms of imprisonment imposed, the Court also vacated the sentences on all counts and remanded for resentencing.

United States v. Myers, (No: 21-3443)(8th Cir. December 29, 2022)– Defendant's prior cocaine conviction under Mo. Rev. Stat. Sec. 195.211 was not a serious drug offense for purposes of imposing a sentencing enhancement under the Armed Career Criminal Act because the version of the Missouri statute in place at the time of defendant's conviction included certain isomers of cocaine not present in the federal definition of cocaine, making Missouri's statute broader that the federal definition of cocaine contained in 21 U.S.C. Sec. 812(c).

OTHER NEWS

Notable District Court Ruling on Methamphetamine Sentencing Guidelines by a Notable Federal Sentencing Judge –

United States v. Robinson, (No. 3:21-CR-14-CWR-FKB-2) (S.D. Miss. Dec. 23, 2022)– The ruling addresses the calculation of the federal sentencing guideline range in meth cases, and here are some excerpts:

The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability. As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.” All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture....

The distinction is significant to Robinson. Because he possessed 214.4 grams of especially pure methamphetamine, the Guidelines indicate that he should have a “base offense level” of 32. In contrast, if Robinson was deemed to have possessed 214.4 grams of methamphetamine mixture, the Guidelines indicate that his base offense level would be 26.

At the outset, the Court appreciated the parties for pointing to Judge Bennett’s decision in United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018). In that case, the United States conceded that there is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture. Other courts have found the same:

United States v. Hartle, No. 4:16-CV-233-BLW, 2017 WL 2608221, at *2 (D. Idaho June 15, 2017); United States v. Johnson, 379 F. Supp. 3d 1213 (M.D. Ala. 2019); United States v. Carrillo, 440 F. Supp. 3d 1148 (E.D. Cal. 2020); United States v. Diaz, (No. 11-CR-821-2(JG)), 2013 WL 322243, at *16 (E.D.N.Y. Jan. 28, 2013); United States v. Ibarra-Sandoval, 265 F. Supp. 3d 1249, 1255 (D.N.M. 2017); and United States v. Cabrera, 567 F. Supp. 2d 271(D. Mass. 2008), to name a few.

On review, the Judge agreed with these colleagues. The Guidelines use drug purity as a proxy for culpability. But national experience suggests that is no longer true for methamphetamine. The DEA data show that most methamphetamine confiscated today is “pure” regardless of whether the defendant is a kingpin or a low-level addict....

Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant’s case and life -- seeing the defendant as a “whole person,” as the Supreme Court just instructed in Concepcion. 142 S. Ct. at 2395. There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises. If the defendant’s case warrants, those enhancements should be applied. In the context of methamphetamine, though, purity is no longer probative of the defendant’s culpability.

This ruling is notable on its own terms, but it seemed especially worthy because of the opinion's author: U. S. District Judge Carlton W. Reeves. Judge Reeves, as some readers likely know, is the new Chairman of the U. S. Sentencing Commission.

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

Fair Sentencing/Retroactive Sentence Reductions 3,980 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 11,564 granted to date.
Compassionate Releases/Reduction in Sentences 4,385 granted to date.

COMMENT:

A better week from the circuit courts this week. We believe that the methamphetamine District Court case is very instructive. We also believe that there are ways to make AG Garland’s Memo work retro in some cases with the right pleading and judge. Anyone who believes they may have a Taylor, Concepcion, Ruan, Bruen, Earned Time Credit or any other claim you believe you may have relief coming for or just want to see if we can find something that will gain you relief should opt for a Written Case Evaluation. The evaluation 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.

There were 12 new compassionate release motions granted this week and 7 others were granted relief for the Fair Sentencing Act/ Retroactive Sentence Reductions.

Anyone who thinks that they may qualify for compassionate release or any other remedy should request a Written Case Evaluation (we no longer offer Free Lookups). For the last 28 years, we have also been very successful on direct appeals, 2255 motions and 2241 Petitions, First Step Act, Compassionate Release Motions, DC Superior Court, State Post Conviction, Clemencies and Pardons, and Parole Packages to mention a few avenues for relief. We also can help you with Earned Time Credits and other specialized motions.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.