U. S. Supreme Court Happenings and Favorable Federal Circuit Opinions for the Week of October 18-25, 2024--

U. S. Supreme Court Happenings– Week Ending October 25, 2024 –

The US Supreme Court released this order list this week with a few cert grants. The grants concerning challenges to actions by the EPA are likely to get a lot more attention than the one criminal case grant. We are intrigued by the grant in Esteras v. United States, (No. 23-7343), below is the basis for that case:

In setting forth factors a court may consider in revoking a term of supervised release and ordering a person to serve a prison sentence for violating a supervised-release condition, the supervised-release statute, 18 U.S.C. § 3583(e), cross-references some, but not all, subprovisions of 18 U.S.C. § 3553(a). Congress omitted the factors set forth in Section 3553(a)(2)(A) — the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense. Edgardo Esteras contends that five courts of appeals, including the 6th Circuit in his case, have concluded that district courts may rely on the Section 3553(a)(2)(A) factors, but four other courts of appeals have concluded that they may not. The government contends that courts can properly consider such factors and that “[a]ny modest disagreement among the courts of appeals on the question presented has no practical effect.”

Favorable Federal Circuit Opinions for the Week of October 18-25, 2024 –

5th Circuit

United States v. Henry, (No. 23-30589)(5th Cir. October 17, 2024)– Justin Henry pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He appealed his conviction and sentence. The core issue in Henry’s appeal is whether it is appropriate to apply § 2K2.1(b)(6)(B) of the United States Sentencing Guidelines to a defendant for possessing a firearm “in connection with” possession of stolen property where the evidence of a connection between the two acts is possession of both items at the same time. The Court adhered to precedent that the enhancement is not appropriate here and vacated Henry’s sentence and remanded for resentencing.

9th Circuit

United States v. Avenati, (No. 22-50301)(9th Cir. October 23, 2024)(unpublished)– Michael Avenatti, who gained notoriety while representing adult film actress Stormy Daniels in her legal dispute with then-President Donald Trump, earned a rare legal victory Wednesday when a Ninth Circuit panel threw out his 14-year sentence for stealing millions of dollars from his former clients.” Avenatti appealed a 168-month sentence imposed after he pled guilty to four counts of wire fraud, 18 U.S.C. § 1343, and one count of obstructing the due administration of the internal revenue laws, 26 U.S.C. § 7212. The Court vacated the sentence and remanded for resentencing. The three-judge panel found the trial judge in Orange County made a number of errors in sentencing the disbarred lawyer. For one thing, in calculating the amount of money Avenatti stole from his clients, the judge “should have accounted for the value of his legal services and costs, as well as the value of certain payments he made to victims.” "By finding that Avenatti’s victims “lost” the full settlement value without accounting for Avenatti’s fees and costs, the district court enhanced Avenatti’s sentence based on pecuniary harm that did not occur, and did not 'result from [Avenatti’s] offense.’” In addition, the panel found U.S. District Court Judge James Selna abused his discretion in refusing to “credit (and thus deduct from the losses) the value of payments Avenatti made to Geoffrey Johnson, Alexis Gardner, and Gregory Barela after he misappropriated their settlements. These too, should be accounted for on remand.”

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

Fair Sentencing/Retroactive Sentence Reductions 4,148 Orders Granted to date.
Elderly Offender Home Confinement 1,246. Approved to date.
First Step Act Releases 39,455 granted to date.
Compassionate Releases/Reduction in Sentences 4,763 granted to date.
Population in RRC’s 8,355.
Population in Home Confinement 4,985.

COMMENT:

We have been receiving a lot of inquiries regarding the new U. S. Sentencing Guideline Amendments effective November 1, 2024. Those Amendments include: (1) Acquitted Conduct; (2) Rule for Calculating Loss; (3) Circuit Conflicts; (4) Youthful Individuals; and (5) Miscellaneous. We have also received a lot of inquiries about 18 U.S.C. §§ 922(g) & 924(c) convictions based on the recent Rahimi decision and circuit decisions such as Range and Williams based on last year’s Bruen Supreme Court decision. Beginning October 25, 2024 until November 8, 2024, we will be evaluating cases for the new Amendments and/or the firearm convictions. We will need an outside contact’s name and telephone number, where you went to court, and your case number. We will contact your contact and let them know if you have any potential relief available from the above remedies. Our case evaluation telephone number for the above is (832) 346-0220.

The Corrlinks/TRULINCS website has been changed. A new policy effective September 30, 2024, where the BOP is only allowing groups of ten (10) emails may be sent out at a time. Alert2020 has several different emails which we have acquired through all the years we have produced and published the Alert Update. Currently, we have groups of 1000 inmates so that when we send out the weekly Alert Update, we can send out 1000 emails at a time and we do that to all the thousands of readers and our followers each week. Of course, all of our newsletter can also be found on our website at: federal-alert.com. We have had our technicians put all of our groups in groups of ten. As such, we have about 5,000 groups of 10, whereas before we had about 50 groups of 1000. Therefore, it will take us considerable more time to distribute the newsletter and we may have to eventually charge a subscription fee. We thank all of the people who are posting the newsletter in the law libraries at the institutions. Anyone else who is interested please let us know.

For the last 30 years, we have been very successful 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 you 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.