U. S. Supreme Court Happenings, Favorable Federal Circuit Opinions & Other News for the Week of November 14-18, 2022--

Supreme Court Happenings for the Week ending November 18, 2022 –

The Supreme Court will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States. The defendant in the case is David Dubin, who was convicted of Medicaid fraud. As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime. Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud. A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

The Justices met for their November 18, 2022 conference today. We expect Orders on Monday morning.

Favorable Federal Circuit Opinions for the Week of November 14-18, 2022 –

5th Circuit

United States v. Barcenas-Rumualdo, (No. 21-5079) (5th Cir. November 18, 2022)– Barcenas-Rumualdo was indicted for illegally reentering the United States, a violation of 8 U.S.C. § 1326. He unsuccessfully moved to dismiss the indictment on equal protection grounds. After a bench trial on stipulated facts, the district court sentenced him to 30 months’ imprisonment and three years’ supervised release. On appeal, Barcenas-Rumualdo argues that § 1326 violates the Fifth Amendment’s equal protection principles. As for his sentence, he asserts improperly considered the timing of an appeal in sentencing him to three years of supervised release. The Government concedes that the district court erred in basing the term of supervised release on the timing of an appeal but otherwise defended Barcenas-Rumualdo’s conviction and sentence. The Court agreed that the district court abused its discretion by considering the appeal clock in determining the appropriate term of supervised release and vacated that part of Barcenas-Rumualdo’s sentence and remanded for reconsideration of the supervised-release term.

United States v. Handlon, (No. 22-50075)(5th Cir. November 16, 2022)– Handlon is serving a federal sentence of 240 months’ imprisonment for conspiring to possess and distribute methamphetamine and hydrocodone. Since July 2020, Handlon has filed three motions for compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A)(i). The district court rejected Handlon’s first motion because he had failed to exhaust his administrative remedies, and denied Handlon’s second motion on the merits on November 18, 2020. More than a year later, Handlon filed a third motion for compassionate release. The district court denied the third motion “for the same reasons stated in” its November 18, 2020 order. Handlon now appealed the district court’s order denying his third motion. Because the district court did not provide a sufficient factual basis for the Court to exercise appellate review, the Court vacated the district court’s order and remanded for further proceedings.

6th Circuit

United States v. Gibson, (Nos. 21-1404)(6th Cir. November 18, 2022)– Gibson challenged his sentence arising from a cocaine, fentanyl, heroin, marijuana, and methamphetamine drug distribution conspiracy. The Court agreed with Gibson that his post-conviction letter to the district court asserting a perfunctory denial of guilt was an improper basis to impose a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1.

Reno v. United States, (No. 22-3784 )(6th Cir. November 14, 2022)– On September 13, 2022, eighty-three days after the district court entered judgment denying his 28 U.S.C. § 2255 motion, Joseph Reho, proceeding pro se, moved for an extension of time to apply for a certificate of appealability and to proceed in forma pauperis on appeal. If Reho’s motion was a notice of appeal, it was three weeks late, and we must dismiss for lack of jurisdiction. See 28 U.S.C. § 2107(b)(1); Fed. R. App. P. 4(a)(1)(B)(i). But Reho’s motion, which repeatedly asks for an extension of time, is better construed as a motion for extension of time to file a notice of appeal. See 28 U.S.C. § 2107(c); Fed. R. App. P. 4(a)(5)(A). Accordingly, the Court remanded for the district court to consider whether to grant Reho’s motion.

9th Circuit

United States v. Nishada, (No. 21-10070)(9th Cir. November 17, 2022)– The panel vacated two special conditions of supervised release and remanded for resentencing so that the district court can clarify the scope of authority delegated to the probation officer. The special conditions charge the probation officer, in consultation with the treatment provider, with supervising the defendant’s participation in mental-health and substance-abuse treatment programs, including the duration and intensity of the programs. The defendant argued on appeal that the treatment conditions are unlawful because they purport to delegate to the probation officer authority to determine her punishment, which is a function reserved exclusively for the court. The defendant did not contest that she knowingly and voluntarily waived her “right to assert any and all legally waivable claims,” and the panel rejected the defendant’s argument that the district court’s statements about her ability to appeal vitiated her appeal waiver. The panel noted that when a defendant with an otherwise valid appeal waiver challenges the legality of her sentence, the claim as to waiver rises and falls with the claim on the merits. The panel reviewed for plain error whether the treatment conditions, which the defendant did not challenge in the district court, are illegal. Rejecting the defendant’s argument that the condition allows the probation officer to impose an indefinite term of treatment, the panel concluded that the defendant’s sentence facially confines her treatment conditions to her five-year term of supervised release and does not impermissibly delegate to the probation officer the power to determine a length of punishment by the term set by the court. The panel then addressed the defendant’s argument that the district court improperly delegated authority over the “nature and extent” of her punishment by giving the probation officer discretion to determine whether she must participate in inpatient or outpatient treatment. The panel wrote that whether a defendant must participate in inpatient treatment is a determination of the nature or extent of the punishment, which cannot be delegated to a nonjudicial officer. And that while the record is not definitive regarding the district court’s intent, the words that it used give the probation officer (in consultation with the treatment provider) discretion to require inpatient or outpatient treatment. Thus, the district court committed plain error affecting the defendant’s substantial rights because she must comply with the conditions or face revocation of her supervised release. The panel therefore vacated the substance-abuse and mental-health treatment conditions and remanded for resentencing so that the district court can clarify the scope of authority delegated to the probation officer consistent with this opinion.

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

Fair Sentencing/Retroactive Sentence Reductions 3,965 Orders Granted to date.
Elderly Offender Home Confinement 1,209 Approved to date.
First Step Act Releases 10,764 granted to date.
Compassionate Releases/Reduction in Sentences 4,347 granted to date.

COMMENT:

A slow week for favorable cases with the Holiday weekend in the federal courts. 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 request a Written Case Evaluation. The Review will give you a detailed procedural and fact background about your case. We also give you Alert’s findings and recommendats as to what can be done, if anything, to help you gain relieve wfrom your sen tence.

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 27 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.