PRE & POST CONVICTION LAW PUBLICATION

RETROACTIVE APPLICATION OF 925(C) STACKING.

There is movement in the Senate to change the law and make the stacking of 924(c) offenses retroactive. This would apply to the interpretation of the statute that having one gun used in multiple offenses not stackable. It has not yet passed but we are hopeful.

Case Law Updates

Seventh Circuit: Prior Conviction Under Overbroad State Drug Statute May Be Used in Career Criminal Enhancement But Not For Prior Drug Crimes Enhancement

On July 20, 2020, the U.S. Court of Appeals for the Seventh Circuit held that a prior state drug conviction under a statute that defined the drug more broadly than the equivalent federal statute could be used to enhance a federal drug crime sentence as a career offender under U.S.S.G. §§ 4Bl.l(a) and 4B1.2(b) but could not be used as a prior drug crime to enhance the sentence under 21 U.S.C. §§ 84l(b)(l)(C) and 851. It vacated the sentence and remanded the case.

Accordingly, the Court vacated the sentence and remanded for resentencing. See: United States v. Ruth, 966 F.3d 642 (7th Cir. 2020).

Sixth Circuit Vacates First Step Act Resentencing Denial Where Court Failed to Consider Post-Sentencing Conduct

In a decision filed on August 26, 2020, the U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Kentucky’s order denying a prisoner’s motion for sentence reduction under the First Step Act because the court failed to consider his post-sentencing good-conduct argument.

Accordingly, the Court vacated the district court’s order and remanded the case to the district court for further consideration of Williams’ good-conduct argument consistent with its opinion. See United States v. Williams, 972 F.3d 815 (6th Cir. 2020).

Fifth Circuit: Safety Valve Isn’t Up to the Government

The U.S. Court of Appeals for the Fifth Circuit held on August 21, 2020, that it’s not up to the Government to determine whether a defendant qualifies for a reduced sentence under the safety valve provisions of 18 U.S.C. § 3553(f). Instead, the Court reminded, it is up to the district court to make that decision based on evidence and not mere speculation by the Government.

Accordingly, the Court vacated Lima-Rivero’s sentence and remanded for resentencing. See: United States v. Lima-Rivero, 971 F.3d 518 (5th Cir. 2020).    [You didn’t highlight this part to be typed but I wasn’t sure if you missed it. It is the  “Accordingly (summary) of the case. ]

Seventh Circuit: Incompetent Advice to Reject Plea Offer Requires Evidentiary Hearing

The U.S. Court of Appeals for the Seventh Circuit held a district court erred in failing to grant an evidentiary hearing on a claim that counsel rendered ineffective assistance by advising him to reject a favorable plea agreement without having reviewed the case file.

Accordingly, the Court vacated the district court’s order, and the matter remanded for an evidentiary hearing. See: Day v. United States, 962 F.3d 987 (7th Cir. 2020). [You didn’t highlight this part to be typed but I wasn’t sure if you missed it. It is the  “Accordingly (summary) of the case. ]

Third Circuit Announces Resentencing Under First Step Act Requires Use of § 3553(a) Factors

The U.S. Court of Appeals for the Third Circuit held on September 15, 2020, that when a district court determines that a person is eligible for sentencing relief under the First Step Act, the court must consider all the applicable sentencing factors under 18 U.S.C. § 3553(a), even if the new Guidelines range is the same as the old range.

Fourth, the Court agreed with the Sixth Circuit in United States v. Boulding, 960 F.3d 774 (6th Cir. 2020), that § 404 requires an accurate calculation of not only the GSR but “thorough renewed consideration of the § 3553(a) factors.”

The Court also cited the Supreme Court’s decision in Pepper v. United States, 562 U.S. 476 (2011), that post-sentencing rehabilitation “may be highly relevant to several of [those] factors.”

Accordingly, the Court remanded for the district court to resentence Easter under the newly announced rule. See: United States v. Easter, 975 F.3d 318 (3d Cir. 2020).

Ninth Circuit: California Conviction Under § 261.5(c) Not Predicate Offense For § 2252(b)(1) Enhancement

The U.S. Court of Appeals for the Ninth Circuit held that a defendant’s conviction under California Penal Code § 261.5(c) is not a predicate offense triggering a higher mandatory sentencing range under 18 U.S.C. § 2252(b)(1) because the state statute of conviction is not a categorical match to the general federal definition of sexual abuse of a minor.

This analysis is known as the “categorical approach” and was set forth in Taylor v. United States, 495 U.S. 575 (1990).

Sixth Circuit Vacates Sentence Where Upward Variance Based on Criminal History Had Little Bearing on Instant Offense

The U.S. Court of Appeals for the Sixth Circuit vacated the U.S. District Court for the Western District of Michigan’s sentence where the sentence imposed was an upward variance from the Guidelines range based on the defendant’s criminal history, but that history had little bearing on the instant offense.

Accordingly, the Court vacated Lee’s sentence and remanded for resentencing. See: United States v. Lee, 974 F.3d 670 (6th Cir. 2020).

Second Circuit Announces Compassionate Release Motion

by Prisoner Not Constrained by Outdated Guideline § 1B1.13, Application Note 1(D)

INDICTED OR CONVICTED BY THE FEDS? FEDERAL CRIMINAL LAW CENTER CAN HELP!

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