U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions and Other News for the Week of January 29-February 2, 2024 --

U. S. Supreme Court Happenings– Week Ending February 2, 2024 –

The Justices next conference is on February 16, 2024.

Favorable Federal Circuit Opinions for the Week of January 29-February 2 –

8th Circuit

United States v. Watkins, Jr., (No. 22-3564)(8th Cir. January 30, 2024) – The district court plainly erred in presuming the guidelines range was reasonable and in adopting a sentence without considering the § 3553(a) factors; these procedural errors, coupled with the fact that the court had previously granted defendant a 60-month downward variance, demonstrate a reasonable probability that defendant would have received a lighter sentence but for the errors. The Court vacated his sentence, and the matter is remanded for resentencing consistent with this opinion.

10th Circuit

United States v. Hohn, (No. 22-3009)(10th Cir. January 31, 2024)– Following the September 18, 2023 oral argument in this matter, a poll was called to consider whether this matter should be heard and decided by the en banc court in the first instance. A majority of the active judges of the court voted in favor of initial hearing en banc, and the poll carried. Although this entire case will be heard en banc, the parties shall address the following questions in supplemental briefs:

A. Did Shillinger v. Haworth, 70 F.3d 1132 (10th Cir. 1995) correctly hold that it is structural error for the government to purposefully intrude without legitimate justification into the attorney-client relationship and that prejudice must be presumed?

B. When, if ever, does the government unjustifiably intrude into the attorney client relationship by intentionally obtaining attorney-client communications that are not privileged?

OTHER NEWS

Below are two notable new district court grants of sentencing-reduction motions rejecting the government’s arguments that change in the law is an improper ground.

United States v. Capps, (No. 1:11-cr-00108-AGF) (ED Mo. Jan. 31, 2024)–The Government argues that subsection (b)(6) is an invalid exercise of the Commission’s authority. Specifically, the Government contends that subsection (b)(6) conflicts with § 3582(c)(1)(A) because nonretroactive changes to sentencing law are neither extraordinary nor compelling. The Government further argues that the subsection raises separation-of-powers concerns because it contradicts Congress’s deliberate choice not to make the change in sentencing law here retroactive. The Court disagreed. “Congress is not shy about placing [sentencing modification] limits where it deems them appropriate.” Concepcion, 597 U.S. at 494. In this case, Congress broadly empowered and directed the Commission to issue binding guidance as to what circumstances qualify for potential reduction. See § 3582(c)(1)(A). Nothing in the statute’s text prohibits the Commission from considering nonretroactive changes in the law as extraordinary and compelling reasons for a sentence reduction.

Congress could have drafted such a blanket prohibition into § 3582(c)(1)(A), as it did in 28 US.C. § 994(t) by specifying that “[r]ehabilitation of the defendant alone shall not be considered an extraordinary and compelling reason.” See also Concepcion, 597 U.S. at 483 (“Congress has shown that it knows how to direct sentencing practices in express terms.”). Congress chose not to impose a similar prohibition with respect to nonretroactive changes in the law.

United States v. Padgett, (No. 5:06cr13-RH) (ND Fla. Jan. 30, 2024)– Over the last two decades, U.S. courts have convicted hundreds of thousands of Latin American defendants for misdemeanor immigration crimes. This has mostly happened through a federal program called “Operation Streamline.” In that program, immigrants are convicted without any semblance of due process. They are charged with the crime of entering the United States, have a brief conversation with a defense lawyer, plead guilty in a mass plea hearing with up to one hundred defendants at once, and receive their sentence — all in a single court appearance. In 2018, this program encountered its first organized resistance. In that year the Trump Administration tried to bring Operation Streamline to California for the first time. There, immigrant defendants and their lawyers did not acquiesce to a norm of immediate guilty pleas. Instead, they fought their cases by securing release on bond, raising objections, taking their cases to trial, and appealing their convictions. This unexpected resistance prevented federal prosecutors from processing dozens of cases per day. In 2021, something similar happened in Texas. Governor Greg Abbott created a state law version of Operation Streamline called “Operation Lone Star.” Immigrant defendants and their lawyers have resisted this program as well, securing release on bond and fighting through motions, writs, and trials.

This Article documents, analyzes, and draws lessons from these immigrants’ defiance. It does so using court records, transcripts, and firsthand accounts. In the process this Article uncovers the institutional logic of these mass immigrant prosecution systems, which have become a major feature of U.S. immigration policy. It shows how these systems prioritize efficiency above all else, resulting in inferior jail conditions, summary court proceedings, and coerced guilty pleas. In particular, it critiques the role defense lawyers typically play in these systems. Defense lawyers are expected to facilitate these prosecutions by coaching their clients to plead guilty quickly. Their presence gives the proceedings a false legitimacy, as these systems are designed to prevent lawyers from providing competent counsel. As this Article argues, defense lawyers should instead undermine these systems by helping defendants assert their rights and litigate. Indeed, immigrant defendants have powerful incentives to fight their cases if their lawyers will help them. The battles in San Diego and Texas reveal several effective strategies for immigrant defendants to resist mass criminalization through collective litigation. These include pushing for bail, going to trial, taking legal issues up on appeal, forcing prosecutors and judges to spend time on each case, and coordinating with outside groups like bail funds, immigration organizations, activists, and the media.

RUMORS

Over all of our years, every year we hear the latest inmate rumors, all of which are complete BS. Here are some of the latest ones: One said changes in the gun laws will go into effect. Another heard that the meth laws will change. Another explained that all criminal history points from prior state convictions will be dropped from Guidelines criminal history. A fourth heard that acquitted conduct will be banned for sentencing purposes. People were saying that effective yesterday, FSA credits could be used by everyone, not just low- and minimum- recidivism level inmates. Of course, the old reliable one every year about either parole being reinstated or 65% good time. Our comment is: DON’T BELIEVE THE HYPE. If something is changing for real, we will let you know here.

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

Fair Sentencing/Retroactive Sentence Reductions 4,133 Orders Granted to date.
Elderly Offender Home Confinement 1,247. Approved to date.
First Step Act Releases 28,396 granted to date.
Compassionate Releases/Reduction in Sentences 4,680 granted to date.
Population in RRC’s 8,046.
Population in Home Confinement 5,295.

COMMENT:

Written Case Evaluation (“WCE”) as soon as possible to make that determination. Amendment 821 became effective yesterday 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.