The First Few Steps of First Step Act Litigation

The First Step Act of 2018 is just under two years old, and so the contours of the rights and remedies it created are just starting to come into view. The Sixth Circuit provided some more clarity this week in a handful of published and unpublished cases.

Eligibility. So far, the Sixth Circuit has said that the Act provides a chance for resentencing even for those who were sentenced under the career-offender guidelines, not the drug guidelines. See United States v. Beamus, 943 F.3d 789, 791 (6th Cir. 2019). This week, in United States v. Flowers, the Court clarified that people are eligible for relief under the First Step Act even if their Guidelines remain unchanged.

Procedure. People are not entitled to have a fresh hearing where all mitigating and aggravating circumstances are reweighed. United States v. Alexander, 951 F.3d 706 (6th Cir. 2019) (per curiam order); see also United States v. Foreman, 958 F.3d 506, 510–12 (6th Cir. 2020). But sentencing judges have discretion to do so and are wrong to think they cannot consider a person’s efforts to improve himself or herself while in prison. United States v. Allen, 956 F.3d 355, 357–58 (6th Cir. 2020). And district courts must recalculate and consider the current Guidelines. United States v. Boulding, No. 19-1590, --- F.3d ---, 2020 WL 2832110, at *7–8 (6th Cir. June 1, 2020). Decisions to maintain the original sentence that is above the post-First Step Act Guidelines require compelling justification. United States v. Smith, 959 F.3d 701, 704 (6th Cir. 2020).

This week, in United States v. Domenech, the Sixth Circuit provided an illustration of how these principles should be applied in the process.  In 2007, two brothers, William and Alejandro, were convicted and sentenced for various drug and firearms offenses. They filed a motion for a sentence reduction. William originally received a 174-month sentence. The new Guidelines range applicable to him is 120-150 months. The district judge sentenced Alejandro to serve 360 months in prison. The amended range now is 262-327 months. The judge denied both motions.

On appeal, the Sixth Circuit held that a district court abused its discretion by rejecting a motion for a sentence reduction relying on the reasons provided at the original sentencing. The court failed to treat the reduced ranges as the starting point and identified factors already incorporated into the Guidelines calculation.

Limitations. United States v. Wylie, offers an odd wrinkle to the mix. The district court sentenced Mr. Wylie to serve a 51-month sentence for being a felon in possession of a firearm and ammunition. Fifteen days later, the judge notified the parties that he’d changed his mind and wanted to impose a lower sentence to make it more consistent with the First Step Act. The government appealed the 41-month sentence arguing that the district court did not have jurisdiction to do this.

The Sixth Circuit agreed because Federal Rule of Criminal Procedure 35(c) allows only for clerical changes after the imposition of a sentence, which is the date of the oral pronouncement, not the date the judgment is entered on the docket.18 U.S.C. § 3582(c)(2) is an additional obstacle because it prescribes only two methods to reduce a sentence: a motion by the Bureau of Prisons or a motion by the defendant. So, Mr. Wylie will have to file a motion for a sentence reduction. At least his chances of having it granted look good.

Appeals. Lurking beneath this week’s First Step Act opinions is an unaddressed issue: jurisdiction. For years, the Sixth Circuit dismissed for lack of jurisdiction appeals of the denial of a motion for a sentence reduction. It was the only court to interpret 18 U.S.C. § 3742 this way. In United States v. Marshall, 954 F.3d 823 (6th Cir. 2020), the Court changed course, holding that § 3742 is a mandatory claims processing rule, not a jurisdictional limitation.

Still, some panels dismissed appeals of the denial of a sentence reduction under the First Step Act for lack of subject-matter jurisdiction. See United State v. Butler, 805 F. App’x 365 (6th Cir. 2020). Recently, that debate was put to rest when another panel held that 28 U.S.C. § 1291 is the source of appellate jurisdiction to review an appeal of the denial of a motion for a sentence reduction under the First Step Act. United States v. Richardson, 960 F.3d 761 (6th Cir. 2020). The Richardson panel saved for another day whether § 3742 imposes any limitation on the scope of appellate review and assumed without deciding that it could decide if the denial was substantively reasonable. Judge Kethledge wrote a concurrence to highlight that he does not believe § 3742 has any role to play when a district judge denies a motion for a sentence reduction.

In each of the First Step Act cases the Sixth Circuit decided this week, the panels did not even mention § 3742. Instead, they reviewed the denial of the motion for an abuse of discretion.

The Sixth Circuit Picks a Side in the “Different Location” Debate

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The U.S. Sentencing Guidelines were supposed to make sentencing simpler. Practitioners know that there is nothing simple about them. The Guidelines manual is a hefty book and cases interpreting these provisions fill the Federal Reporters and Federal Appendices interpreting the Guidelines. Advisory though they may be sometimes parsing the text of a guideline can make a difference in years and months.

In United States v. Hill, the Sixth Circuit had to decide whether a victim is taken to a “different location” if the robber forced the victim from the sales floor to a back room. Section 2B3.1(b)(4)(A) increases the base level for a robbery offense if a victim “was abducted to facilitate commission of the offense.” What does “abduction” mean? The commentary says abduction occurs when “a victim was forced to accompany an offender to a different location.” U.S.S.C. §1B1.1 cmt. n.1(A). Courts disagree about what exactly is a “different location.”

At Mr. Hill’s sentencing, the government argued that the abduction enhancement applied under these facts, which would raise the base offense level by four. Mr. Hill’s attorney argued that only a two-level enhancement should apply for “physically restrain[ing a victim] to facilitate commission of the offense or to facilitate escape.” U.S.S.G. § 2B3.1(b)(4)(B). The difference was significant. If the abduction enhancement applies, then the Guidelines range is 130–167 months in prison (10 years and 10 months to 13 years and 11 months). Without that enhancement, the Guidelines range is 110–137 months’ imprisonment (9 years and 2 months to 11 years and 5 months).

Considering dictionary definitions didn’t help the court decide whether a back room is a “different location” from the front of the store. So, the court turned to other interpretive tools beginning with ordinary use. In the ordinary course, when discussing where a robbery took place, people usually say, “a bank,” “a store,” or “a gas station.” They don’t say, “the sales floor of a cell phone store.”

Then the court looked at the word “accompany,” which denotes some movement—even minimal movement. That suggests that there would be no need to include the phrase “different location” when a sentence without it already covers forced movement.

Next, the example provided in the commentary offered some insight into what the Guidelines’ drafters were thinking. That example involves taking a teller from the bank into the getaway car, which the court concluded lent support for the conclusion that the back room and the sales floor are not “different locations.”

Circling back to the original text of the statute, the court looked at the word “abduct,” which is synonymous with “kidnap.” It reasoned that when most people hear those words, they don’t think of moving a person into a different room. Instead, people would be more likely to say that the victims were held hostage.

Finally, the court considered the neighboring enhancement for physically restraining victims. The commentary to that provision describes locking up victims, which would presumably also require some movement. There would be no need to have two different enhancements for the same conduct.

For all these reasons, the court joined the Seventh and Eleventh Circuits to hold that moving victims from one room of a store to another does not qualify as “abduction.” It added one note of caution, however, that many of these determinations will be fact-specific. Judge Siler wrote a short dissent, explaining that he found the reasoning of the Third, Fourth, Fifth, and Tenth Circuits more persuasive.

There’s good evidence this was a fight worth having. The judge sentenced Mr. Hill to 130 months’ imprisonment—at the bottom of the higher Guidelines range. Mr. Hill will return to the district court for resentencing where he surely hopes the judge will impose a sentence at the bottom of the new range.

Sixth Circuit Holds that Ohio Felony Drug Trafficking is a "Controlled Substance Offense."

Like every other circuit, the Sixth Circuit has produced a lengthy scroll of published cases dealing with predicate offenses under the First Step Act and the Guidelines' career offender provision. The Court's opinion in United States v. Smith continues that trend. 

Smith pleaded guilty before the district court to distributing a controlled substance in violation  of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). Due to his prior felony drug trafficking conviction under Ohio law, Smith faced an increased statutory maximum under § 841(b)(1)(C). Finding that Smith was subject to both the increased statutory maximum and an enhanced sentence under the Guidelines as a career offender, the Court sentenced him 150 months imprisonment.

On appeal, Smith argued that his prior felony drug trafficking conviction was not a "serious drug felony" under § 841, as amended by the First Step Act. Additionally, he argued the same conviction was not a predicate offense under the Guidelines' career offender provision. 

Before Smith could go any further, however, he had to clear that common bugaboo for all criminal appellate attorneys: an appellate waiver contained in his plea agreement. Unfortunately for Smith, the Court held his waiver was valid and that his claims on appeal fell within it.

Although the Court could have stopped with Smith's appellate waiver, it went further to address his First Step Act and career offender arguments. First, it held that the issue was not whether Smith's Ohio drug trafficking conviction was a "serious drug felony" but rather whether it was a "controlled substance" offense, since the First Step Act did not modify 841(b)(1)(C) -- the section at issue in that case.

Turning its attention to whether Smith's Ohio drug trafficking conviction under ORC § 2925.03(A)(2) met the definition of a "controlled substance offense" under the Guidelines, the Court first determined it was not divisible since it listed alternative means of committing the same offense. Using the categorical approach, the Court then concluded ORC § 2925.03(A)(2) was categorically a "controlled substance offense" under the Guidelines. Each of the statute's three elements, the Court concluded, fell within the categorical definition. The Court thus affirmed Smith's sentence.

Court Again Leaves a Guilty Plea in Place

Once bound to a plea agreement with the Government, it is often difficult for a defendant to find his way out of that agreement. The same holds true for Phillip Watkins. Ninety-eight days after the district court accepted his guilty plea to conspiring to possess and distribute heroin (resulting in injury) and to witness tampering, Mr. Watkins filed a motion to withdraw the same. Finding that the Bashara factors weighed against him, the district court denied his motion.

In a published opinion, the Sixth Circuit affirmed the denial of Mr. Watkins's motion. While the Court found that all of the Bashara factors weighed against allowing Mr. Watkins to withdraw his guilty plea, one holding, in particular, caught this author's eye: his claim that the stresses of solitary confinement while awaiting trial forced him to plead guilty. Although the district court never conducted an evidentiary hearing about these claims, the Court rejected Watkins's argument by relying on his answers to the Rule 11 questions asked by the district court during his rearraignment.

Once accepted, a guilty plea is difficult to withdraw. This case is no exception, even though an evidentiary hearing might have helped to provide more details about Mr. Watkins claims regarding his solitary confinement.

News (Not News): Court Again Upholds Broad Wiretap Authorization

In the spring of 2017, DEA agents began investigating a large-scale drug trafficking operation operated by brothers Yusef Phillips and Ray Anthony Lee. Using evidence they obtained over the many months of their investigation, DEA agents obtained permission to tap Phillips and Lee's cell phones. Casting the net permitted by their Title III wiretaps, agents uncovered text messages and recorded conversations between Alex Castro and Phillips and between Dante Howard and Phillips wherein they discussed purported drug transactions. Based on their investigation, agents arrested seventeen members of the alleged drug trafficking operation, including Castro, Howard, and Solon Tatum.  A jury subsequently convicted all three defendants of conspiring to distribute controlled substances, among other charges.

On appeal, Castro challenged the district court's order denying his motion to suppress the evidence obtained through the wiretaps. Chiefly, he argued the wiretaps were not necessary because the Government had already obtained substantial evidence against the members of the drug trafficking organization using traditional investigation methods by the time they submitting their wiretapping applications. In a published opinion, the Court agreed with the district court's order denying Castro's motion. Like the district court, the Court accepted the Government's representation that traditional investigation techniques were unlikely to lead agents to Phillips and Lee's sources of supply. The fact the DEA accomplished some of its goals using traditional investigation techniques, the Court concluded, did not mean it had to call off the remainder of its investigation.

Howard challenged the sufficiency of the evidence supporting his conspiracy conviction. The Government, he claimed, only presented evidence he purchased drugs from Phillips, not that he was involved in the drug trafficking operation. The Court rejected this argument, pointing to Phillips's testimony that he sold large quantities of drugs to Howard from late 2016 through September of 2017, evidence that Phillips and Howard used coded language attributed to drug dealing, and their concerns about avoiding detection by law enforcement. Citing to the same evidence, the Court also rejected Howard's hearsay challenge to certain statements introduced against him pursuant to the co-conspirator exception to the hearsay rule.

Tatum likewise challenged the sufficiency of the evidence supporting his conspiracy conviction. Not so, the Court held. Pointing to Lee's testimony about fronting a kilogram of cocaine to Tatum on two occasions, the Court concluded the jury correctly found he was a participant in the drug trafficking organization.

Tatum also challenged his conviction for possessing cocaine with the intent to distribute on July 18, 2017, noting the Government introduced no evidence he sold cocaine after that date. The Court rejected this argument as well, holding the Government merely had to prove his intent to distribute the drugs, not that he actually distributed them.

There Are No Shortcuts In Seeking Compassionate Release...Even During a Pandemic.

If you practice criminal defense on any level, you are aware of the profound threat COVID-19 poses to local jails, and both state and federal prisons. In many instances, it is difficult, if not impossible, to practice social distancing in facilities that were already overcrowded before the pandemic struck. The risk is particularly profound for many elderly inmates or inmates with medical conditions that increase the likelihood they will die from the virus.

For federal practitioners, the pandemic has lead to a dramatic increase in the filing of compassionate release motions pursuant to 18 U.S.C. § 3582(c)(1)(A). While the First Step Act expanded the compassionate release statute, an inmate seeking such release still faces a significant bureaucratic hurdle:  he or she must first go to the warden of their facility before seeking relief from the court. The inmate must then exhaust his or her administrative rights to an appeal or wait 30 days after the warden received his or her request, whichever occurs first.

The onset of COVID-19 makes this hurdle more significant. Since the virus spreads quickly through jails and prisons, inmates do not wish to wait thirty days before they can file motions. This has lead defense counsel to seek avenues around the exhaustion requirement. In United States v. Alam, the Sixth Circuit affirmed that there are no such avenues.

Mr. Alam is a 64-year-old man suffering from several medical conditions that, when combined with his age, places him at high risk for morbidity from COVID-19. Having served almost 50% of his 101-month sentence, Mr. Alam sent a letter to the warden of his facility asking him to file a motion for compassionate release. However, he also filed his own motion with the district court ten days later. After the Government objected, the district court denied his motion for failing to satisfy the exhaustion requirement.

On appeal, the Court considered whether Mr. Alam's failure to satisfy the exhaustion requirement deprived the lower court of subject matter jurisdiction to consider his motion. It concluded it did not. Instead, it held the exhaustion requirement was a claim-processing rule courts must enforce when "properly invoked." Since the Government raised a timely objection to Mr. Alam's motion, the district court correctly dismissed the same.

In affirming the lower court's decision, the Court also rejected a litany of arguments raised by Mr. Alam as to why courts could carve exceptions to the exhaustion requirement. Notably, it rejected his argument that it should find an equitable exemption to the exhaustion requirement by noting that since "time is of the essence" to prisoners seeking compassionate release, creating an equitable exemption would allow other inmates to "jump the line," thus making the process "less fair...."

Having held Mr. Alam's motion was untimely, the Court turned to addressing the proper remedy. Although some district courts hold untimely motions in abeyance until the 30-day window expires, the Court affirmed the district court's decision to dismiss Mr. Alam's motion without prejudice, noting that it was better to have him refile "with the benefit of whatever additional insight he may have gleaned."

In this decision, the Court makes clear that there are no shortcuts around the exhaustion requirement for compassionate release in the Sixth Circuit. While this decision provides no comfort to the many at-risk inmates who currently live in fear of contracting the virus, defense counsel looking to file such motions should first check with their clients to see if they have initiated the administrative process before looking to seek relief from district courts. 

When is a Defendant Eligible for Resentencing under the First Step Act? Sixth Circuit Joins Sister Circuits in Issuing a Favorable Ruling.

Is a defendant's eligibility for resentencing under the First Step Act tied to his or her statute of conviction or the record of conviction as a whole? In United States v. Boulding, the Sixth Circuit joined its sister circuits in affirming the former.

A jury convicted Walter Boulding of one count of conspiracy to distribute, and to possess with intent to distribute, 50 grams or more of crack cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A)(iii), and one count of possession with intent to distribute 5 grams or more of crack cocaine, in violation of §§ 841(a)(1) and 841(b)(1)(B)(iii). However, Mr. Boulding's Final Presentence Report attributed substantially more crack cocaine (650.4 grams) to him, which subjected him to a mandatory life sentence because he had two prior felony drug convictions. The district court subsequently sentenced Mr. Boulding to life imprisonment on the first count and 360 months on the second count.

  

In 2018, Boulding moved the district court reduce his sentence pursuant to the First Step Act. Over the Government's objection, the district court imposed a reduced sentence of 324 months imprisonment on both counts, to be served concurrently. However, it denied Mr. Boulding's request for a de novo resentencing hearing and for an opportunity to object to his amended sentence. The Government and Mr. Boulding filed subsequent cross-appeals.

On appeal, the Government argued the district court erred finding Mr. Boulding eligible for resentencing under the FSA. Arguing that the phrase "the statutory penalties for which" modified not the nearest noun ("a Federal criminal statute") but the entire preceding phrase ("a violation of a Federal criminal statute"), the Government claimed the Act required the district court to look at the entire record of Mr. Boulding's conviction, which, considering the large quantity of crack cocaine attributed to him, made him ineligible for resentencing. The district court disagreed. Joining its sister circuits, the Court held that resentencing under the Act hinged upon the applicable "Federal criminal statute" and found that the district court correctly held Mr. Boulding was entitled to resentencing.

Turning to Mr. Boulding's second argument, the Court held that although Mr. Boulding was not entitled to a plenary resentencing hearing under the FSA, the Act provides defendants with an opportunity to present objections to any amended sentence imposed, although the sentencing court has the discretion to fashion the means by which they may lodge their objections. Since the district court did not permit Mr. Boulding an opportunity to present his objections to his amended sentence, the district court abused its discretion. Thus, the Court vacated the amended judgment and remanded Mr. Boulding's case for resentencing.