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Updated: 1 hour 12 min ago

Challenging federal sentencing enhancements based on Missouri drug convictions

6 hours 47 min ago
Submitted by Paige A. Nichols on Thursday, January 20, 2022 - 15:06.

Do you ever have clients with prior Missouri (or other state) drug convictions? Or do you just want to brush up on the law of predicate drug convictions? Join Dan Goldberg, AFPD for the Western District of Missouri, on Zoom this Friday, January 21, 2022 at noon to learn practical and specific arguments that have prevented the government from using Missouri drug crimes (as well as other state drug crimes) to enhance your client’s sentence.

Recent trends in this area of Supreme Court and Eighth Circuit law will be identified, as well as what issues to anticipate in 2022 and beyond.

This program is approved for Missouri and Kansas CLE credit.

Please RSVP to RSVP4CLE@gmail.com.

BOP finally giving credit for time earned

Fri, 01/14/2022 - 09:33
Submitted by Melody Brannon on Friday, January 14, 2022 - 10:33.

“The Justice Department will begin transferring thousands of inmates out of federal prisons this week as part of a sweeping criminal justice overhaul signed by President Donald Trump more than three years ago,” according to WaPo yesterday.

The First Step Act was enacted in December 2018, implementing changes in mandatory minimum sentences and other relief, including Earned Time Credits to people in prison who participate in programs designed to reduce recidivism. Summed up nicely by Reuters: “By earning those credits, they can qualify to be released early into halfway houses or home confinement. In some cases, inmates can also earn up to 12 months of credit that would be applied toward supervised release.”

After three years, BOP had not yet awarded any credits, even though some 60,000 folks have done the work. That is set to change now that BOP has rules in place just as we reach the congressionally imposed January 15, 2022 deadline.

This is not a panacea. To qualify, people still have to score low on BOP’s risk assessment, PATTERN, which has been criticized as racially skewed. And there are many whose convictions make them ineligible for Earned Time Credit. But finally getting the program in place, with retroactive credit, will mean that thousands are eligible for relief. From DOJ’s press release:

As part of the implementation process, the Federal Bureau of Prisons (BOP) has begun transferring eligible inmates out of BOP facilities and into either a supervised release program or into Residential Reentry Centers (RRCs) or home confinement (HC).   


Implementation will occur on a rolling basis, beginning with immediate releases for inmates whose Time Credits earned exceed their days remaining to serve, are less than 12 months from release, and have a Supervised Release term.

And in other good news, BOP Director Carvajal, a holdover from the last administration who oversaw a disastrous handling of Covid in BOP and failed to implement reform (including awarding earned time credits), is resigning. Now this administration can appoint someone who is dedicated to the prison reform promised by this administration.

More reading:

Michael Balsamo and Michael R. Sisakap, US prisons director resigning after crises-filled tenure (AP News Jan. 5, 2022)

Keri Blakinger, The Marshal Project, The Federal Bureau of Prisons is getting a new leader — and another shot at reforms (NBC News Jan. 13, 2022)

Sara Lynch, New U.S. Rule lets federal inmates earn credits for early release (Reuters Jan. 13, 2022)

"Find out why they are falling in"

Wed, 01/05/2022 - 08:43
Submitted by Melody Brannon on Wednesday, January 5, 2022 - 09:43.

Archbishop Desmond Tutu passed December 26, 2021 at age 90. In the many remembrances of him, these words were attributed to him:

"There comes a point where we need to stop just pulling people out of the river. We need to go upstream and find out why they're falling in."

What a perfect description of holistic public defense. We can keep pulling our clients through the current charges, trying to reach the best outcome for them, fighting for them, holding them up as best we can.

But at some point, we must look beyond the current case. We need to figure out how our clients reached us in the first place. We need to look upriver at the failed systems, the generations of poverty, the inherent racism, the choices and the lack of choices that brought them to us. “Find out why they are falling in.”

And then maybe we can figure out how to keep the system from throwing them back in.

If you have a minute, watch this charming clip of Desmond Tutu and the Dalai Lama.

And if you are interested in holistic public defense, the Kansas Holistic Defenders is hosting The Bronx Defenders to offer three days of free training (CLE credit pending) January 18 through 20, 2022 by Zoom. This includes sessions on:

  • Introduction to Holistic Defense
  • Negotiations from a Client-Centered Perspective
  • Bail Advocacy
  • Effective Investigation
  • Police, Community Engagement + Community Organizing
  • Working with Community Providers and Resource Building
  • Resiliency + Longevity in the Work

It looks like a great program, and the Bronx Defenders know their stuff. RSVP here.

RIP Desmond Tutu.

"Find out why they are falling in

Wed, 01/05/2022 - 08:43
Submitted by Paige A. Nichols on Wednesday, January 5, 2022 - 09:43.

Tenth Circuit Breviaries

Thu, 12/16/2021 - 10:42
Submitted by Paige A. Nichols on Thursday, December 16, 2021 - 11:42.

We’re finally catching up with the Tenth Circuit:

FISA (and then some)

In these consolidated appeals comprising 282 pages of majority & dissenting opinions (including extensive tables of contents and acronyms), the Tenth Circuit tackles terrorism, warrantless FISA surveillance, and extraterritorial search warrants, ultimately affirming both appellants’ convictions for conspiring and providing material support to the Islamic Jihad Union. United States v. Muhtorov; United States v. Jumaev.

Speedy trial

It’s been a while since the Tenth Circuit has reviewed a serious constitutional speedy-trial claim, and the one presented in Muhtorov and Jumaev is a doozy: a pretrial delay of six-plus years; government claims of national security; extreme discovery delays on the government’s part; and questions about what it takes to assert a speedy-trial right in the face of such delays. The majority rejects the claim, while Judge Lucero, in dissent, finds an “unambiguous” constitutional speedy-trial violation.

Predicate offenses: Kansas priors

Does your client have a prior Kansas conviction that has been invoked as a predicate offense punishable by imprisonment for a term exceeding one year? Check your client’s Kansas journal entry of judgment for evidence that your client’s prior conviction was a qualifying* presumptive-probation offense, or a qualifying* SB 123 (mandatory drug treatment) offense. If so, the prior conviction was not punishable by imprisonment for a term exceeding one year, and cannot be used as a predicate offense.

This issue was decided in September with respect to an SB 123 prior in United States v. Hisey, 12 F.4th 1231 (10th Cir. 2021) (holding in § 2255 appeal that defendant was “actually innocent” of § 922(g)(1)).

And this issue was decided last month with respect to a presumptive-probation prior in United States v. Hilleland, Appeal No. 21-3063, 2021 WL 5561019 (10th Cir. Nov. 29, 2021) (reversing § 922(g)(1) conviction on direct appeal: “Hilleland, like Hisey, does not fall into the class of persons prohibited from possessing a firearm under § 922(g). He could not have committed the § 922(g) offense that he was sentenced for.”).

*Questions about what kinds of Kansas priors qualify as Hisey/Hilleland priors? Contact your friendly Kansas FPD.

Drug sentencing: personal-use quantities

Personal-use drug quantities are not relevant conduct under USSG § 1B1.3 for a defendant convicted of distributing drugs or possessing with intent to distribute drugs. But to carve out those quantities, the defendant must come forward at sentencing with “some evidence that a specific quantity was intended for personal use.” The government retains the ultimate burden of proof as to drug quantity for relevant-conduct purposes, and must either rebut or accept the defendant’s evidence. After that, the district court must determine whether the personal-use possession was part of or connected to the distribution offense. That is the lesson of United States v. Wilson.

Restitution & crimes of violence & federal assault & involuntary manslaughter

“Because the MVRA incorporates the federal criminal code's definition of ‘crime of violence,’ see 18 U.S.C. § 3663A(c)(1), the Supreme Court's decision in Borden effectively means that the MVRA does not apply to any criminal offense that has a mens rea of recklessness. And because we have held that the offense of assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113(a)(6), can be committed with a mens rea of recklessness, see Mann, 899 F.3d at 904, that means that offense does not fall within the scope of the MVRA. In other words, the offense of assault resulting in bodily injury is not an offense that triggers application of the MVRA.” Neither is involuntary manslaughter a crime of violence. United States v. Benally, ___ F.4th ___, 2021 WL 5872484 at *6 (10th Cir. 2021).

Benally also reminds us that harm for restitution purposes under either the MVRA or the VWPA is not limited to harm identified as an essential element of the offense of conviction. Rather, these provisions authorize restitution more broadly for losses caused by the conduct that is the basis for the conviction.

Special conditions of supervised release

In United States v. Benvie, the Tenth Circuit found plain error in the district court’s failure to adequately explain why it imposed several special conditions of supervised release. Stating simply that “the total combined sanction, without a fine, is sufficiently punitive” was not enough. As the Tenth Circuit pointed out, “[i]t is reasonably probable that if the district court had explained its reasoning for the conditions and ensured that its reasoning was supported by the record, then the court may have refrained from imposing some, if not all, of the conditions.” Remember—special conditions must further the statutory requirements of 18 U.S.C. § 3583(d), and the district court must explain how they do that.

Why your client should get probation

Mon, 11/29/2021 - 09:11
Submitted by Paige A. Nichols on Monday, November 29, 2021 - 10:11.

Is your client probation-eligible but your judge probation-shy? Perhaps the judge read the Sentencing Commission's July 2020 report on Federal Probation and Supervised Release Violations, and learned that about one in five people violate supervision every year.

But that report lumped folks on probation with folks on supervised release on the assumption that these supervision statuses are "functionally equivalent." This assumption is mistaken, as Penn State Law Professor Jacob Schuman explains in The Secret Success of Federal Probationers, a must-read for anyone seeking probation on behalf of a client in federal court.

Professor Schuman teased out the probationer data and confirmed that probationers are much more successful on supervised release than the Commission's report suggests. For instance:

  • The Commission calculated an overall violation rate of 15-20%
  • Professor Schuman calculated a probation violation rate of only about 5%
  • The Commission found violators overall committed 13.6 % serious felony violations (grade A), 31.5 % other felony violations (grade B), and 54.9 % misdemeanor and technical violations (grade C)
  • Professor Shuman found the rates for probation violators were 6.99 %, 28.07 percent, and 64.94 percent, respectively

In sum, "[f]ederal probationers were 95 percent likely to comply with the terms of their supervision, and when they did misbehave, two-thirds of the time it was for a misdemeanor or technical violation. The report largely reflects the outcomes for supervised-release violators, and is not accurate as to federal probationers."

Once we've corrected any misperception the judge may have about probationers, it might be a good time to remind the judge as well that probation itself is no walk-in-the-park windfall. It is punishment, as the Supreme Court recognized in Gall v. United States:

Offenders on probation are . . . subject to several standard conditions that substantially restrict their liberty. See United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (“Inherent in the very nature of probation is that probationers ‘do not enjoy the absolute liberty to which every citizen is entitled’ ” . . .). Probationers may not leave the judicial district, move, or change jobs without notifying, and in some cases receiving permission from, their probation officer or the court. They must report regularly to their probation officer, permit unannounced visits to their homes, refrain from associating with any person convicted of a felony, and refrain from excessive drinking. USSG § 5B1.3. Most probationers are also subject to individual “special conditions” imposed by the court.

552 U.S. 38, 48-49 (2007). Recall that in Gall, the Supreme Court held that a district court reasonably sentenced Mr. Gall to probation, a downward variance from his 30-37-month guidelines range for conspiring to distribute ecstasy for seven months (and netting over $30,000.00). The key is to show the district court how probation satisfies multiple sentencing factors. See United States v. Cookson, 922 F.3d 1079, 1093 (10th Cir. 2019) ("we have cautioned against excessive reliance on a single factor in sentencing").

Finally, while the guidelines range is the starting place, the judge "may not presume that the Guidelines range is reasonable." Gall, 552 U.S. at 50 (emphasis added). "[T]he Guidelines are only one of the factors to consider when imposing sentence, and § 3553(a)(3) directs the judge to consider sentences other than imprisonment." Id. at 59.

Calling all law students!

Mon, 11/22/2021 - 07:52
Submitted by Paige A. Nichols on Monday, November 22, 2021 - 08:52.

What will you do with your freedom this summer?

Join Third Chair and help others realize theirs.

Over the last two years, law student interns at the Kansas Federal Public Defender Office helped our office knock 200 years off of 59 people’s prison sentences through motions for compassionate release—a newly available legal procedure that became a “life-or-death lottery” for clients during the pandemic. Interns interviewed clients in the Bureau of Prisons, gathered records, recommended action, drafted motions, and saw results.

What you will do in our office depends on the needs of our clients, many of whom come from impoverished and over-policed minority communities. You might track and call out police misconduct. You might help a young father reenter life outside prison. You might research ways to diversify the federal jury pool. Or you might contribute to a Supreme Court petition. Whatever the work, it will involve real cases with real consequences for real clients and beyond. And you will leave our office with a strong, closely-edited writing sample reflecting that work.

What’s more, you’ll get a crash course on federal criminal law and procedure; shadow trial attorneys; tour prisons; and meet personally with former clients, judges, experts, and probation officers. Every day you will render public service in an office that puts our clients first through holistic representation, collaboration, and education.

Third Chair is a 9-week, 40-hours-per-week unpaid (some funding may be available) internship in our Kansas City, Kansas office starting May 31, 2022 (with days off to observe Juneteenth and the Fourth of July). We aim to empower students from diverse backgrounds to explore public service as a possible career. Apply by February 15, 2022 at https://ks.fd.org/content/third-chair. Positions will be filled on a rolling admission basis. Questions? Contact Shajiah Jaffri at 913-825-6924 or shajiah_jaffri@fd.org.

The Kansas FPD is hiring!

Mon, 11/08/2021 - 12:37
Submitted by Paige A. Nichols on Monday, November 8, 2021 - 13:37.

The FPD is hiring a legal assistant or paralegal to work in our Topeka or Wichita office. If you want to be a part of public defense, or know someone who is qualified and interested, please let us know. Applications will be reviewed on a rolling basis, with preference given to those received by December 10, 2021. Click here for more info.

The Federal Public Defender for the District of Kansas is an equal opportunity employer. No personnel actions or practices (including hiring, termination, promotion, demotion, advancement, or terms and conditions of employment) are based on an individual's race, creed, color, ethnicity, national origin, religion, sex, sexual orientation, gender identity or expression, age, height, weight, veteran status, military obligations, or marital or parental status.

Outstanding public defenders

Fri, 11/05/2021 - 05:05
Submitted by Melody Brannon on Friday, November 5, 2021 - 06:05.

Congratulation to Kansas AFPDs Mitch Biebighauser and Carl Folsom, both recipients of Kansas Bar Association awards on October 21, 2021:

We all know what wonderful advocates they are, but we are extra delighted that the statewide bar association recognized their hard work and professionalism. Well done!

Tenth Circuit Breviaries

Mon, 11/01/2021 - 08:06
Submitted by Paige A. Nichols on Monday, November 1, 2021 - 09:06.

Recently at the Tenth Circuit:

Excited utterances

In United States v. Vigil, the Tenth Circuit held that a six-year-old child's statements to her mother a short period of time after the child claimed that Mr. Vigil sexually assaulted her were admissible at Mr. Vigil's trial over his hearsay objection as excited utterances.

Immigration crimes

It is a crime for an "alien" to "enter[] or attempt[] to enter the United States at any time or place other than as designated by immigration officers." 8 U.S.C. § 1325(a). But what if the person entering is, at the time of the border crossing, under official restraint? Is "enter" a term of art such that it can only be accomplished when one is free from official restraint?

That was the question posed in United States v. Perez-Velasquez. But it is a question that remains (mostly) undecided.

The appellants in Perez-Velasquez were convicted under § 1325(a) after walking around a fence to bypass a port of entry. They were both detained almost immediately. They argued that their crossing did not count as a § 1325(a) "entry" because they were under official restraint at the time. That restraint, they argued, took the form of constant surveillance. Put another way: If they were under surveillance when they snuck in, they didn't really sneak in, did they?

The Tenth Circuit rejected the appellants' argument, holding that "surveillance on its own cannot transform into restraint." Having so held, the Court avoided the larger question whether freedom from official restraint is required for an "entry" under § 1325(a).


"[A]n orally pronounced sentence controls over a judgment and commitment order when the two conflict." But if the oral and written pronouncements merely create an ambiguity, then the latter may stand as a clarification of the former. So said the Tenth Circuit in United States v. Bruley.

"Controlled substances" under the federal sentencing guidelines

Sun, 10/24/2021 - 05:57
Submitted by Paige A. Nichols on Sunday, October 24, 2021 - 06:57.

Circuit split alert!

A person convicted of a federal crime may face a much higher advisory guideline sentence if the person has one or more prior convictions of a "controlled substance offense." See, e.g., USSG § 4B1.1 (career-offender guideline); USSG § 2K2.1 (firearms guideline).

The guidelines define "controlled substance offense" as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." USSG § 4B1.2(b).

But the guidelines don't define "controlled substance." Where do we look for this definition? To the federal Controlled Substances Act? Or to the law in the jurisdiction of the prior conviction?

The answer to this question makes an enormous difference. Suppose you have a prior state conviction under a state statute that prohibits distributing a variety of substances, including vampire dust. Vampire dust is not a federal controlled substance. If "controlled substance" is cabined by federal law, your prior state conviction is not a "controlled substance offense" for guideline purposes because the state law is broader than the federal law. Cf. United States v. Cantu, 964 F.3d 924 (10th Cir. 2020) (state conviction not "serious drug offense" for ACCA purposes where state law broader than federal law). If "controlled substance" is defined by the jurisdiction of the prior conviction, then your prior conviction is a "controlled substance offense," and you might be looking at an advisory guideline range that is anywhere from 2X to 10X higher than the range that would otherwise apply.

Last week, the Tenth Circuit concluded in United States v. Jones that "controlled substance" as used in USSG § 4B1.2(b) means whatever the jurisdiction of the prior conviction says it means. With Jones, the Tenth Circuit deepens a circuit split on this issue. Read Jones and the cases on the other side of the split (they're cited in Jones) and preserve this issue in appropriate cases. This question seems destined for Supreme Court consideration in the near future. Perhaps in your client's case.

Questions? Contact your friendly local federal public defender office.

Beyond Carpenter

Sun, 10/17/2021 - 18:24
Submitted by Paige A. Nichols on Sunday, October 17, 2021 - 19:24.

It's been three years since the Supreme Court held in Carpenter v. United States that the government's acquisition of historic cell site location records from third-party wireless carriers was a search for Fourth Amendment purposes requiring a warrant.

How has Carpenter fared in those three years? Has it ushered in a new era of Fourth Amendment jurisprudence, as some commentators predicted? It's a bit too early to tell, but Professor Matthew Tokson gives us an encouraging preview in his article The Aftermath of Carpenter: An Empirical Study (Forthcoming, 135 Harvard Law Review __ (2022)). Professor Tokson analyzes hundreds of state and federal decisions applying Carpenter to discuss a number of questions raised by the case, including:

  • What kinds of technology does Carpenter reach?
  • What factors have courts found persuasive when conducting a Carpenter analysis? 
  • What role does the good-faith exception play in Carpenter-like cases (and how might we limit that role)?
  • How can we more effectively argue that the Fourth Amendment applies to new technological practices?

Ultimately, Professor Tokson predicts that "[i]t is likely that Carpenter will remain a valid precedent and that its reasoning will be used to expand the scope of the Fourth Amendment to a variety of new technologies and surveillance practices."

Tenth Circuit Breviaries

Mon, 10/11/2021 - 12:22
Submitted by Paige A. Nichols on Monday, October 11, 2021 - 13:22.

Only one published criminal-law case from the Tenth Circuit last week:

Compassionate release

Exhaustion of administrative rights, while statutorily required, is not a jurisdictional prerequisite to filing a motion for compassionate release in the district court. So said the Tenth Circuit in United States v. Hemmelgarn. But this doesn't mean exhaustion isn't important. It's still a mandatory claim-processing rule that the government may invoke as a defense to the motion. Counsel should thus submit proof of exhaustion with the district court motion. In Hemmelgarn the government waived exhaustion on appeal, so the absence of proof did not prevent consideration of the motion on its merits. Unfortunately for Mr. Hemmelgarn, the Tenth Circuit also affirmed the district court's denial of his COVID-19-based motion on the merits.

Tenth Circuit Breviaries

Sun, 10/03/2021 - 16:19
Submitted by Paige A. Nichols on Sunday, October 3, 2021 - 17:19.

Last week at the Tenth Circuit:

Fourth Amendment

In United States v. Kendall, the Tenth Circuit held that law enforcement's (1) impoundment and (2) inventory search of Mr. Kendall's car after a traffic stop were both reasonable. The inventory search included an area underneath the center console as well as an interior panel beneath the glove box. The first of these was a reasonable extension of the inventory search; the second was not, but it was nonetheless a reasonable exercise of law enforcement's community-caretaking function (by that time, officers had reason to believe there was a gun hidden in the car). No new law here, but a detailed analysis of the facts under existing law, so be sure to read Kendall if you've got an impoundment or inventory question in your case.

United States v. Chavez involved a traffic stop for a turn-signal-duration violation. In Chavez, the Tenth Circuit held that, even if Mr. Chavez signaled before changing lanes for the full two seconds required by the Utah traffic code, the trooper who stopped him had reasonable suspicion that he didn't, based on the trooper's "rule of thumb" that "generally two signal cycles are less than two seconds."

Did the trooper thereafter unduly prolong this stop for a turn-signal-duration violation in order to wait on a drug dog? Here is the timeline, according to the decision:

T-1 The trooper initiates a traffic stop for a turn-signal-duration violation.

T-2 Mr. Chavez passes an exit ramp (this appeared odd to the trooper) and then pulls over.

T-3 Mr. Chavez is ready with his DL when the trooper approaches his car (this, too appears odd to the trooper).

T-3 The car is a rental and Mr. Chavez has trouble finding the agreement . . . but then he finds it! (And the trooper's suspicion grows.)

T-4 Mr. Chavez declines to come back to the trooper's patrol car and asks the trooper to just write him a citation so he can be on his way (this seems abnormal to the trooper).

T-5 The trooper learns that Mr. Chavez is overdue to return the rental and that he wasn't supposed to have the car out of state.

T-6 Eight minutes into the stop, the trooper finishes writing the turn-signal-duration citation and asks dispatch for a drug dog. Dispatch says there isn't a dog available.

T-7 No drug dog, eh? NOW the trooper asks dispatch for a background check and criminal-history report. And whaddaya know, while the trooper is waiting on the criminal history, the drug dog arrives.

The delay after the trooper finished the citation was reasonable, according to the majority in United States v. Chavez. And that's because traffic stops "present significant danger to law enforcement." It was reasonable for the trooper to extend Mr. Chavez's stop before giving him his turn-signal-duration citation so that the trooper could "better understand" whether Mr. Chavez "might engage in violent activity during the stop."

Senior Judge Lucero dissented. He would have found the delay impermissible under Rodriguez.

"Controlled substance offenses" under USSG 2K2.1(a) and 4B1.2(b)

Do "controlled substance offenses" under these guideline provisions include convictions for state drug crimes that cover substances not controlled under federal law? The Tenth Circuit isn't telling. At least not in United States v. Jones, because either way, any error was harmless in Jones. Keep preserving this issue and object if the district court considers a prior state drug conviction a controlled substance offense for guideline calculation purposes, if state law at the time of the prior offense covered more than federally controlled substances.

Indeterminate confinement and due process

Think you know the difference between a criminal sentence and a civil commitment, and the due-process implications of those labels? The answers may not be as obvious as you think. If you want to know more, take a look at Wimberly v. Williams, in which the majority and the dissent spar over whether a person convicted of a Colorado sex offense and confined for an indeterminate one-day-to-life term has a right, after nearly four decades, to a hearing to determine the appropriateness of his continued confinement.