U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions for the Week of January 22-26, 2024 --
U. S. Supreme Court Happenings– Week Ending January 26, 2024 –
The Justices next conference is on February 16, 2024. The Orders issued this week did not have anything new for our cause. Hopefully, there will be some new opinions soon.
Favorable Federal Circuit Opinions for the Week of January 22-26, 2024 –4th Circuit
United States v. Hart, (No. 20-4534)(4th Cir. January 25, 2024)– Kenneth Hart appeals his convictions for drug dealing and witness tampering. He
argued that the government violated the Speedy Trial Act as to his witness tampering conviction by failing to indict him within thirty days of his arrest for that offense. The Court agreed
with Hart that the government violated the Speedy Trial Act on the witness-tampering conviction and vacate Hart’s witness-tampering conviction (Count Five) and remand for resentencing on all
remaining counts.
United States v. Newby, (No. 21-4018)(4th Cir. January 19, 2024) (from last week)– Martrey Newby has been incarcerated for more than a decade and
is scheduled to be released in 2028. When initially sentencing Newby, the district court included discretionary conditions of supervised release in its written judgment that were not orally
announced during the sentencing hearing. That was error. See United States v. Rogers, 961 F.3d 291 (4th Cir. 2020). Years later, the district court modified Newby’s sentence under the First
Step Act of 2018, and the court’s amended judgment purported to “carr[y] forward” those same conditions. Newby appealed, urging this Court to remand for another round of sentencing. The
Court concluded that, in the specific posture of this case, Newby’s challenges were properly before the Court and vacated Newby’s sentence and remanded for a full resentencing.
5th Circuit
United States v. Tighe, (No. 22-50332)(5th Cir. January 25, 2024)– Lucas James Tighe appealed the district court’s denial of his habeas petition under 28 U.S.C. § 2255 in which he asserted ineffective assistance of counsel based on his trial attorney’s failure to consult with him about filing an appeal. Tighe was able to demonstrate that, but for Diaz’s deficient conduct, he would have appealed. Thus, Tighe is able to establish prejudice by Diaz’s constitutionally ineffective failure to consult with him about an appeal. See United States v. Cong Van Pham, 722 F.3d 320, 323 (5th Cir. 2013). Reversed and Remanded.
10th Circuit
United States v. Simkins, (No. 22-7048)(10th Cir. January 24, 2024)– A jury convicted Montelito Simpkins. On appeal, Simpkins argued that the government presented insufficient evidence for a reasonable jury to find that he is not an Indian—an essential element of his offenses under the Indian Country Crimes Act, 18 U.S.C. § 1152. The government conceded that it offered no evidence of Simpkins’s non-Indian status at trial, yet it argued that he cannot obtain relief because he invited the error by omitting this element from his proposed jury instructions. The Court had to assess the sufficiency of the evidence against the legal elements of the offenses, not against the elements listed in the jury instructions. Additionally, Simpkins preserved his sufficiency challenge by bringing a general motion for acquittal at trial. And because the evidence was insufficient to prove Simpkins’s non-Indian status, the Court reversed his convictions and remanded for the district court to enter a judgment of acquittal.
United States v. Swan, (No. 22-6132)(10th Cir. January 23, 2024)– John Swan appeals the district court’s denial of his presentence motion to withdraw his guilty plea. At the hearing on Swan’s motion, plea counsel testified that he told Swan, who is Black, that all minorities would be removed from his jury and that his case would be tried before exclusively white jurors. This material misrepresentation about Swan’s right to an impartial jury selected through racially nondiscriminatory means occurred just before Swan told plea counsel that he wanted to plead guilty. What’s more, counsel’s misrepresentation was neither corrected during the district court’s plea colloquy nor negated by Swan’s prior experience in the criminal-justice system. Under these circumstances, Swan’s plea was unknowing and involuntary, and the district court abused its discretion in denying Swan’s motion to withdraw his guilty plea. The Court reversed and remanded for the district court to allow Swan to withdraw his guilty plea and for further proceedings.
United States v. Kearn, (No. 23-3029)(10th Cir. January 23, 2024)– Jonathan Kearn was indicted on three counts. Even though Kearn faced an upper exposure of 30 years’ imprisonment on the charges, the government offered a plea agreement for a 10-year sentence. After a six-minute conversation with his trial counsel discussing the plea agreement he chose to reject the offer and proceed to trial. He was convicted on all three counts and sentenced to 24 years in prison. After exhausing his direct appeal. Kearn then filed a pro se 28 U.S.C. § 2255 motion, arguing his trial counsel was constitutionally ineffective during the plea-bargaining phase.The district court appointed counsel and, after an evidentiary hearing, granted the motion, finding (1) his trial counsel provided deficient advice about the proposed plea deal, and (2) there was a reasonable probability that, but for counsel’s errors, he would have pleaded guilty. The court ordered the government to reoffer the plea, concluding no reasonable person would have rejected the offer knowing and understanding its contours and the sizeable reduction in sentence exposure. It then accepted Kearn’s guilty plea, vacated the prior judgment, and resentenced him to 10 years’ imprisonment. This Court affirmed. The district court correctly concluded that trial counsel’s brief discussion with Kearn was inadequate to explain the complexities of the plea and that counsel had supplied inaccurate and misleading information in that conversation. Given the substantial difference in sentencing exposure—20 years—and the evidence suggesting Kearn was amenable to pleading guilty had he been adequately advised, the court reasonably found that Kearn would have accepted a properly presented plea deal and avoided trial.
OTHER NEWSPublic Hearing on Proposed Amendments to the Federal Sentencing Guidelines
Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Wednesday, March 6 and Thursday, March 7, 2024
(time TBD). The purpose of the public hearing is for the Commission to receive testimony from invited expert witnesses on proposed amendments to the federal sentencing guidelines. The
Commission is currently seeking comment on this year's proposed amendments. The Public Comment Submission Portal will accept comment through February 22, 2024, or you can mail your comments
to: Attention: Public Affairs - Public Comment
One Columbus Circle, NE
Suite 2-500, South Lobby
Washington, DC, 20002-8002
The new proposed Amendments for this cycle include: (1) Rule for Calculating Loss: (2) Youthful Individuals; (3) Acquitted Conduct; (4) Circuit Conflicts; (5) Miscellaneous; (6) Technical;
and (7) Simplification of Three-step Process. We will be giving more details on these new proposed Amendments in the next few weeks in our newsletters.
Fair Sentencing/Retroactive Sentence Reductions 4,132 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 28,118 granted to date.
Compassionate Releases/Reduction in Sentences 4,677 granted to date.
Population in RRC’s 8,065.
Population in Home Confinement 5,329.
We are still receiving a great amount of people wanting to find out if they qualify for any of the new USSG Amendments such 814 as 821. We suggest
that you opt for a Written Case Evaluation (“ WCE”) as soon as possible to make that determination. Amendment 814 is now effective. Amendment 821 becomes effective next Thursday on February
1, 2024. A WCE will also tell you if you have any other relief available.
For the last 29 years, we have been very successful. We can help on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate
Release Motions, Earned Time Credits, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons and other specialized motions to mention a few avenues for relief we cover.
The WCE is an excellent low cost 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 to present with our
recommendations of any remedies available to gain relief.
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.