U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & US Sentencing Commissions Published Proposed Guideline Amendments and Issues for Comment for January 2-6, 2023--

Supreme Court Happenings for the Week ending January 6, 2023 –

The Justices met for their conference today. A probable Supreme Court decision today on granting review to McClinton v. United States is gaining media notice. As previously report here, McClinton examines the unfair sentencing for acquitted conduct, a judicial phenomenon described by the Associated Press as giving defendants “additional prison time for crimes that juries found they didn’t commit.” We expect Orders on Monday. Oral argument will start again next week.

Court Will Mull Scope of Attorney-Client Privilege When Lawyers Give Both Legal and Nonlegal Advice –

A lawyer’s legal advice is privileged. A court cannot order the lawyer or the client to disclose it. But a lawyer’s nonlegal advice is not privileged. What happens when advice is partly legal and partly nonlegal and the two parts cannot be untangled? In such dual-purpose situations, does the privilege protect all the advice or none of it?

On Monday, the Supreme Court will hear opposing answers to that question in a case known as In re Grand Jury. A law firm will argue that the privilege should protect all client communications “where obtaining or providing legal advice was one of the significant purposes behind the communication,” even if nonlegal advice predominated. The United States will argue that unless legal advice was the client’s “primary” purpose, none of the dual-purpose communications should be privileged.

Favorable Federal Circuit Opinions for the Week of January 2-6, 2023 –

4th Circuit

United States v. Malone, (No. 21-6242)(4th Cir. January 5, 2023)– Malone was sentenced to 330 months in federal prison for the use of a firearm to facilitate a drug offense in violation of 18 U.S.C. §§ 924(c), 924(c)(1)(B)(i) and for a drug conspiracy in violation of 21 U.S.C. §§ 846, 841(b)(1)(B). After serving eleven years in prison, Malone filed his first motion for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). Malone argued that his significant health decline and advanced age justified his release. The district court denied his motion, relying solely upon a now inapplicable policy statement, United States Sentencing Guidelines (“Sentencing Guidelines”) Section 1B1.13. See U.S.S.G. § 1B1.13. The following year, the Bureau of Prisons (“BOP”) deemed Malone severely at risk of contracting COVID-19 and placed him in home confinement through authority granted by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). Soon thereafter, Malone filed a subsequent motion for compassionate release reiterating his advanced age and severe health conditions. In addition, Malone presented supplementary arguments that focused on the COVID-19 pandemic, relevant 18 U.S.C. § 3553(a) factors, the “extreme” nature of his sentence, and his inability to receive government benefits while in home confinement. The district court again denied Malone’s motion for compassionate release. Upon review, the Court concluded that the district court abused its discretion by failing to properly assess the following factors which would warrant Malone’s compassionate release: his ailing health, advanced age, and relevant 18 U.S.C. § 3553(a) factors. Had it addressed that evidence, its analysis of whether Malone is entitled to compassionate release would have likely merited a different outcome. Therefore, the Court reversed and remanded the district court’s decision with instructions to grant Malone’s motion for compassionate release.

5th Circuit

Villa v. United States, (No. 22-5437)(5th Cir. January 3, 2023)– Undisputed in this case is that, in January 2016, the prosecutor in Amaury Villa’s case emailed Villa’s counsel, Donald Meier, with an offer to enter into an plea agreement with Villa. What the parties dispute is when Villa learned about that offer. The government says that Meier told Villa about the offer the day it was made. Villa says that he learned about that offer only years later, when he obtained the relevant portion of Meier’s case file. By then Villa had pending with the district court a motion for relief from sentence under 28 U.S.C. § 2255, which he promptly moved to amend with a claim based on Meier’s alleged omission. Villa attached two affidavits (including his own) in support of his motion to amend; the government attached an affidavit from Meier in opposition. Yet the district court summarily adopted the government’s view of the facts and denied Villa’s motion to amend as untimely. The Court vacated the court’s decision and remanded for an evidentiary hearing.

8th Circuit

United States v. Thabit, (No: 21-4028)(8th Cir. January 5, 2023)– An officer must have probable cause to believe that a dwelling is the residence of a parolee in order to initiate a warrantless search of a residence not known to be the home of the parolee. In these circumstances, law enforcement did not have probable cause to believe that defendant was residing at a home near the site of his arrest, and the district court properly suppressed the evidence seized in the warrantless search of the home.

11th Circuit

United States v. Ruan, (No. 17-12653)(11th Cir. January 5, 2023)– This case returned to the Court on remand from the Supreme Court in Ruan v. United States, 142 S. Ct. 2370 (2022) (Ruan II). The Court ordered supplemental briefing to address whether the mens rea jury instruction used in this case was error and whether any such error was harmless. After careful consideration, the Court concluded that the jury instruction used in this case was inconsistent with the Supreme Court’s guidance and did not convey an adequate mens rea to the jury for the substantive drug convictions under 21 U.S.C. § 841. The Court further found that this error was not harmless beyond a reasonable doubt for Dr. Xiulu Ruan’s and Dr. John Couch’s (collectively, the defendants) substantive drug charges. The Court vacated Dr. Ruan’s convictions under 21 U.S.C. § 841 in Counts 8, 9, 11, and 12 and remanded for a new trial. The Court also vacated Dr. Couch’s convictions under 21 U.S.C. § 841 in Counts 5, 6, 7, 13, and 14 and remanded for a new trial.

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

Fair Sentencing/Retroactive Sentence Reductions 3,979 Orders Granted to date.
Elderly Offender Home Confinement 1,217 Approved to date.
First Step Act Releases 11,564 granted to date.
Compassionate Releases/Reduction in Sentences 4,390 granted to date.

COMMENT:

A relatively slow week with Monday being a federal Holiday. We expect Orders on Monday from the U. S. Supreme Court. We are hopeful that the Court grant cert on 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 5 new compassionate release motions granted this week. 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.

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.