The Court continues its in-house disagreement on the use of changes in the law as a basis for compassionate release.  In today's United States v. McCall,  a divided panel of the Court holds " a court may consider a nonretroactive change in the law as one of several factors forming extraordinary and compelling circumstances qualifying for sentence reduction under 18 U.S.C. § 3582(c)(1)(A)."  In doing so, the panel determined that while prior precedent held that a change in the law may not be the sole basis for compassionate release, it could, along with other factors, qualify as a proper basis for a reduction in sentence.  The panel further determined that cases holding otherwise improperly ignored the Court's ruling in United States v. Owens, 996 F.3d 755 (6th Cir. 2021), and thus were not binding.  In his dissent, Judge Kethledge noted that "for the district courts in this circuit, our decision in this case renders the law on the issue presented unknowable."  

It would seem this case tees up the matter for en banc review.  Stay tuned!!

Plea Agreements: Know What You're Getting and What You're Giving Up

Bryan Presley pleaded guilty to conspiring to burglarize pharmacies with the intent to steal controlled substances and assaulting a police officer with his car when he sped away from a burglary scene. Three parts of his plea agreement lead to some tricky questions.

The agreement provisions:

  1. The parties stipulated that three specific offense characteristics applied to the conspiracy count.
  2. Under Rule 11(c)(1)(C), the parties agreed that the Court "may not modify" the three stipulations and "[i]f the Court rejects these stipulations either party may withdraw from the agreement."
  3. Presley waived his right to appeal unless the sentence "is an upward departure from the guideline range that the court establishes at sentencing."
Some questions:
  1. If the court accepted the plea agreement, what did the parties' agreement bind the court to do under Rule 11(c)(1)(C)?
  2. Would Presley have the right to withdraw from the agreement if the court imposed additional specific offense characteristics? What about if the court imposed Chapter Three enhancements?
  3. If Presley did not withdraw from the agreement, would he have the right to appeal if the court sentenced him within a higher guideline range based on additional specific offense characteristics? What about a higher guideline range based on Chapter Three enhancements?
We get answers to only some of these questions in United States v. Presley. At sentencing, the district court adopted additional specific offense characteristics and Chapter Three enhancements and sentenced Presley within the higher guidelines range. Presley didn't move to withdraw or object to the additional enhancements.

On appeal, the court gave a clear answer to the third question: Presley's appeal-waiver applied. Even with the additional specific offense characteristics and Chapter Three enhancements, his sentence was within "the guidelines range that the court establishe[d] at sentencing," so Presley waived his right to appeal "[u]nder the agreement's plain terms."

Seeking to avoid the appeal waiver, Presley argued that he did not knowingly and voluntarily waive his right to appeal because, as he understood it, his plea agreement limited the district court to a lower guidelines range. But Presley didn't raised that objection in the district court, so the court reviewed only for plain error.

On plain-error review, the panel majority concluded that Presley could not show "that it should have been obvious that he understood his plea agreement to forbid the district court from applying additional enhancements." Among other things, the majority noted that the agreement said nothing about additional enhancements beyond the stipulated ones, that Presley himself argued for a total offense level higher than the level based on the stipulations alone, and that he never moved to withdraw his plea. Thus, the majority concluded that the agreement did not "preclude[] further enhancements--at least not plainly so."

Concurring in the judgment, Judge Moore took a different approach. She agreed that the court reviewed only for plain error. But she focused on Rule 11(c)(1)(C): "In essence, Presley's contention is that once the district court accepted the plea agreement, it was bound to apply only the stipulated base offense level and specific offense characteristics; therefore, by adding additional enhancements the district court modified, and thus breached, the plea agreement."

Judge Moore concluded that the agreement said nothing about Chapter Three enhancements, and the district court thus did not plainly err on that point.

Regarding the additional specific offense characteristics, though, Judge Moore found the issue "a much closer question." She reasoned that, although the plea agreement didn't specifically state that no other specific offense characteristics applied, at least one court had held that a similar plea-agreement provision "solidified where [the defendant] will start in Chapter Two of the guidelines," and "[o]rdinarily, we would construe such an ambiguity in favor of the defendant." But on plain-error review, ambiguity wasn't enough to win the day.

So, what did Presley give up in his plea agreement? He gave up the ability to challenge the stipulated offense characteristics. And he gave up his right to appeal any within-guidelines sentence, whatever that guidelines range might be.

And what did Presley get out of the agreement? Perhaps nothing. He gained the right to withdraw if the district court didn't accept the parties' stipulations. But based on the panel majority's reasoning, that might have been no benefit--after all, the agreement said nothing about additional enhancements beyond the stipulated ones.

Howell Did We Get Here?

         Only 2% of federal criminal cases are resolved by trial. As a result, there are few appellate opinions about the rules of evidence or issues that arise at trial.

Gene Howell is one of the few people charged in federal court who took his case to trial. He was charged and convicted of armed bank robbery, brandishing a firearm during a bank robbery, attempted armed robbery, discharging a firearm during the attempted armed robbery, and being a felon in possession of a firearm. The appeal that followed resulted in the rare opinion that provides some guidance about how the Rules of Evidence and the Rules of Criminal Procedure operate, as well as a reminder about why there are so few appeals from trials.

Before trial, Howell’s attorney moved in limine to prevent the prosecutor from introducing evidence of his prior convictions. He also asked the court to hold separate trials for the armed robbery and for the felon-in-possession charge because, to prove that charge, the government must introduce evidence of a prior felony conviction. Typically, in felon-in-possession cases, defendants stipulate to the fact of a prior felony conviction to prevent jurors from learning about the type of conviction.

It’s easy to understand why a person accused of a crime would not want the jury to know about his prior convictions. We try to prevent jurors from thinking “once a criminal, always a criminal” or wishing to punish the person for the prior crime. Although the law presume jurors are capable of considering convictions for a limited purpose, jurors are just people, after all. Few people are actually capable of ignoring the elephant in the room.

The Rules of Evidence are written to prevent this type of prejudice to the accused. Typically, evidence of prior convictions is not admissible. If a defendant testifies at trial, Rule 609 permits the prosecution to introduce prior convictions for the sole purpose of impeaching the defendant’s character for truthfulness. Rule 404 prohibits the use of prior bad acts to prove the defendant’s bad character “in order to show that on a particular occasion the person acted in accordance with the character.”

Understandably, a defendant would want to know before taking the stand if his history will be on display for the jury. But Howell had no way to prevent the jury from hearing about his past. The judge denied the motion for separate trials.  

Howell also did not get the benefit of any clear answer from the judge about how many or which of his prior convictions the jury would know about. Rather than rule on the motion to exclude the prior convictions, the judge reserved ruling to see how the trial progressed. In the end, Howell chose not to take a chance that the jury would hear about his prior convictions and opted not to testify. As a result, the jury heard that Howell had been convicted of a felony before but did not get the benefit of his side of the story.

On appeal, Howell challenged the judge’s decision not to bifurcate the trial or to issue a clear ruling about the admissibly of his prior convictions. But the Sixth Circuit found no problem with how these decisions affected Howell’s trial. In fact, it held that Howell could not challenge the trial court’s decision not to offer a clear ruling because he did not testify, reasoning that they would have to know what he would have said to determine if the introduction of his prior convictions was harmful. Even a summary of Howell’s proposed testimony would not suffice to permit him to challenge the non-existent evidentiary ruling. The result is an odd circumstance where Howell could not make an informed decision about whether to testify, but he also cannot challenge the bind he was in without risking self-incrimination.

The court also found no error in the trial court’s decision to combine armed robbery and felon-in-possession charges in one trial. Federal Rule of Criminal Procedure 8(a) allows the prosecution to try multiple charges together if the offenses are (1) “of the same or similar character”; (2) “based on the same act or transaction”; or (3) “connected with or constitute parts of a common scheme or plan.” Because Howell necessarily was a felon in possession of a firearm when he brandished and discharged the firearm during the robbery, there wasn’t a problem with the joinder of offenses.

Nevertheless, charges should not be tried together if having the jury hear evidence of the charges would prejudice the defendant. This is where the law does not mirror reality. As long as the judge tells the jury not to consider the defendant’s prior felony conviction for any other purpose other than to determine if he was a felon when he possessed the firearm, the law presumes no prejudice. And the same was true for Howell.

In addition, before trial, Howell challenged the introduction of one of the bank teller’s testimony that she believed he was the robber. Immediately after the robbery, the teller told police that she could not identify the robber and that she only knew the robber was a man. A few months later, however, the teller saw Howell on the evening news after his arrest for the attempted robbery of a different bank. When the teller saw Howell’s photo on the evening news, she concluded that he was the same person based on what sounded like a modus operendi to her.

The trial judge allowed the teller to explain to the jury why she believed Howell was the robber, and Howell challenged that ruling on appeal. Rule 701(a) requires opinion testimony be “rationally based on the witness’s perception” and assist the jury understand something they otherwise would not be able to figure out. The Sixth Circuit held that the teller’s opinion testimony was impermissible because she offered no description of the robber before she saw Howell on the news. In addition, her opinion was minimally useful to the jurors who could figure out on their own whether Howell committed both robberies.

Although Howell successfully identified an error at his trial, he did not get a new trial. The Sixth Circuit held that the evidence of his guilt was so overwhelming that the teller’s opinion testimony was “harmless.” His accomplice testified against him, and, according to the court, the instruction to the jury about the dangers of identification when there is limited time to observe were enough to fix the harm caused.

This opinion provides a helpful practice tip for trial lawyers. If you file a motion in limine to exclude certain evidence, there is no need to object when the prosecution introduces the evidence at the trial so long as the trial judge issued a clear, definitive ruling.

Theoretically, Due Process protects against being punished for exercising a constitutional right. But it happens all the time. When Howell decided he wanted a trial, the prosecutor added a felon-in-possession charge. On appeal, Howell argued that the addition of the charge was vindictive. But the Supreme Court has said that the addition of charges or increase in punishment is not presumptively vindictive unless the defendant shows that the prosecutor has a stake in chilling the exercise of a right and that the conduct was unreasonable.

Even though the prosecutor waited 15 months to add the charge, the Sixth Circuit concluded that the prosecutor didn’t have any personal stake in pressuring the defendant not to have a trial.

Once again, the law and reality part ways. The Supreme Court has justified the system of pleas that has become the criminal legal system by exhausting the benefits of “efficient justice.” And Professor Carissa Byrne Hessick recently published a book reexamining whether this system of pleas is the type of system we want. But it is difficult to understand how courts can believe prosecutors who work hard to deter trials don’t have a stake in lighter caseloads and fewer nights preparing for trials.

The Sixth Circuit also found the prosecutor had a good reason to add a charge late in the game. Fifteen months after the grand jury issued the indictment, the prosecutor received the ballistics report, which the Sixth Circuit said helped confirm an element of the offense: that the firearm had crossed state lines or affected interstate commerce. That reasoning is hard to accept at face value given that there are few if any guns manufactured entirely within one state. And even if, in Howell’s case, every part of the gun were manufactured in Tennessee, it’s not clear the government would have difficulty showing an effect on interstate commerce. The Supreme Court concluded that home-grown marijuana affected the market for cannabis.

Howell is now serving a 466-month sentence—close to 39 years. His sentence surely would have been lower had he pleaded guilty. His case is illustrates the many ways the law has developed to encourage guilty pleas. It’s easy to see why only 2% of people charged in federal court take that risk.

Too Compassionate Release: Court Reverses Grant of Compassionate Release to Defendant Sentenced to Life Imprisonment

From 1989 until 1997, John Bass led a drug trafficking organization that distributed multiple kilograms of crack cocaine in Michigan and Ohio. In addition to drug trafficking, Bass also engaged in several violent crimes, including the murder of his half-brother in order to inherit his drug trafficking operation. A the jury convicted him of the drug trafficking charge and one count of murdering another person in the course of committing a drug trafficking crime. Bass's murder conviction made him eligible for the death penalty, but the jury ultimately sentenced him to life imprisonment without the possibility of release.

On June 28, 2020, Bass moved for compassionate release due to the COVID-19 pandemic. Citing his ethnicity (African-American) and his morbid obesity, Bass claimed he was at greater risk of contracting COVID-19 and experiencing severe symptoms. In a supplemental filing, Bass also cited data showing that 20% of the inmate population at his facility (FCI McKean) had been diagnosed with COVID-19. Finally, he cited the United States Bureau of Prisons' Male Prisoner Assessment Tool Targeting Estimate Risk and Need ("Pattern") Risk Scoring Sheet, which he indicated he was a low-risk offender and less likely to reoffend upon his release.

On January 22, 2021, the District Court granted Bass's motion. Noting he possessed several COVID-19 comorbidities and that there was a high rate of infection at FCI McKean, the District Court held that Bass had shown "extraordinary and compelling" reasons for a sentence reduction. The Government subsequently petitioned the Sixth Circuit for an emergency order staying the District Court's order, which the Court granted.

With the stay in place, the Court examined the merits of the Government's appeal. In a published opinion, the Court reversed and remanded the District Court's order, noting it abused its discretion by misapplying the legal standard in 18 U.S.C. § 3553(a)(6) by focusing on sentencing discrepancies between Bass and his codefendants instead of national disparities between defendants with similar criminal histories convicted of similar conduct. 

The Court also faulted the District Court for comparing itself to a parole board in analyzing Bass's motion for compassionate release. In its opinion, the District Court's decision to compare the compassionate release proceedings to parole hearings "infected" the release proceedings with error. Unlike a parole hearing, the Court opined, the inmate's rehabilitation, by itself, did not present an "extraordinary or compelling" reason to grant compassionate release. 

The Court also held that the District Court abused its discretion by giving disproportionate weight to the 18 U.S.C. § 3553(a) factors. In particular, the Court found that the District Court gave too much weight to Bass's background, especially when considering his convictions for serious crimes -- crimes for which the Government sought the death penalty. In reaching this conclusion, the Court also found that the District Court gave too much weight to Bass's low PATTERN score, noting that the test potentially underrepresented his risk of recidivism. 

On remand, the Court encouraged the District Court to consider certain facts that had changed since Bass's original motion. For example, the Court noted that COVID-19 infection rates had decreased markedly at FCI McKean since he filed his motion, and inmates at the facility had access to the vaccine. Finally, the Court noted that Bass had been offered, and refused, the COVID-19 vaccine.

The Court's decision in Bass is one of many considering the discretion afforded district courts in considering motions for compassionate release during the COVID-19 pandemic. These cases will no doubt continue so long as the pandemic rages.

Court Cites Inmate's Vaccinated Status in Denying Motion for a Sentence Reduction


In 2018, the District Court sentenced Millicent Traylor to 135 months in prison after a jury found her guilty of conspiracy to commit health care fraud, conspiracy to pay and receive healthcare kickbacks, and five counts of health care fraud. It subsequently resentenced her to 120 months imprisonment.

At issue in the Sixth Circuit's abbreviated published opinion was Traylor's motion to reduce her sentence pursuant to 18 U.S.C. 3582. In her motion before the District Court, Traylor argued that her long list of health ailments (e.g., diabetes, sleep apnea, asthma, obesity, being a recent organ transplant recipient, and use of immunosuppresive therapy) made her more susceptible to contracting and becoming severely ill from COVID-19 while in custody. The District Court denied her motion, finding that she had failed to raise an "extraordinary and compelling reason" to warrant a sentence reduction because she had received two doses of the Pfizer vaccine; thus, making her less likely to contract and become severely ill from COVID-19. The Sixth Circuit subsequently held that the District Court did not abuse its discretion in denying Traylor's motion because the COVID-19 vaccine was available at Taylor's facility and because she was fully vaccinated.

The Court's opinion, albeit brief, is instructive in the COVID-19 era for those inmates who are at particular risk from COVID-19. To this author, it is interesting to consider whether the Court's analysis would change in light of the rise of the Delta variant, as well as other variants that might arise in the future for which vaccines are less effective.

Keep an Eye Out for Prior Marijuana Convictions

In the 2018 Farm Bill, Congress amended the federal marijuana definition to exclude anything with less than 0.3% THC (commonly called "hemp," but be careful: some sources, including some state-court decisions, use "hemp" to refer to other things). That has spurred some defendants to challenge whether a prior marijuana offense counts as a "controlled substance offense" under Guidelines § 4B1.2. The guidelines definition requires that the offense involve a "controlled substance," and if the state or federal definition did not exclude substances with less than 0.3% THC, they argue, their offenses were categorically overbroad. Two courts of appeals and the "vast majority of district courts to consider the issue" have agreed and held that certain prior marijuana offenses are not controlled substance offenses. See United States v. Perry, No. 20-6183, slip op. at 3-4 (6th Cir. Aug. 18, 2021) (collecting cases).

Enter Mr. Perry. The district court found that he had three prior controlled substance offenses: a federal conviction involving cocaine and two Tennessee convictions involving marijuana. He was thus a career offender, enhancing his guidelines range from 30-37 months in prison to 151-188 months in prison. The court sentenced him to 151 months.

On appeal, Mr. Perry argued that his two Tennessee marijuana convictions weren't controlled substance offenses because the Tennessee definition included substances with less than 0.3% THC. And the court of appeals said he made a "strong claim that he should not have been sentenced as a career offender." Id. at 4. One problem, though: he never objected in the district court. Given no published Sixth Circuit decision on the issue and at least one case deciding the question the other way, the court concluded that Mr. Perry could not establish plain error and affirmed his 151-month sentence.

The court of appeals is sure to decide this issue soon. In the meantime, take a close look at prior marijuana convictions for any objections.

Federal Kidnapping's "Otherwise" Component Might Be Void for Vagueness

 The majority in United States v. Kerns held that the federal kidnapping statute under 18 U.S.C. 1201(a)(1) was not void for vagueness where the issue was raised for the first time of appeal. Under Section 1201(a)(1), federal kidnapping requires kidnapping or holding "for ransom or reward or otherwise" a person while traveling in interstate or foreign commerce. In holding that "otherwise" was not vague, the majority relied on the aging decision in Gooch v. United States, 297 U.S. 124, 128 (1936), which held that "otherwise" encompasses any benefit which a captor might attempt to obtain for himself. Given the "expansive" definition of the term, the majority held Mr. Kerns was on notice as to the criminality of his conduct.

However, Judge Readler wrote a concurring opinion suggesting that the federal kidnapping statute might be ripe for a stronger vagueness challenge under a more advantageous standard of review. Judge Readler indicates that the reasoning in Gooch may no longer be sound, as it "employed now-disfavored atextual interpretive methods, and in the process dramatically expanded the reach of federal criminal jurisdiction, leaving separation-of-powers and federalism concerns in its wake." In his view, the statute may invite the exercise of arbitrary power by allowing prosecutors and the courts to make up when the law is enforced.

Suggestion that Prosecutor Would Not Have Agreed to Plea Terms Had She Had Additional Information Is a Breach of the Plea Agreement

 In United States v. Warren, the Sixth Circuit vacated Mr. Warren's sentence and remanded his case for a resentencing before another judge where the prosecutor breached the plea agreement between the parties. Interestingly enough, this was Davian Warren's second win before the Sixth Circuit, having previously had his sentence vacated and remanded for resentencing where the district court imposed a substantively unreasonable upward variance. United States v. Warren, 771 F. App'x 637 (6th Cir. 2019).

At his resentencing, Mr. Warren's counsel argued that the Court should honor the plea agreement as reflective of the will of the parties and impose a sentence subject to its terms. In response, the government advised it wanted to "clarify" something brought up by defense counsel but indicated it did not intend to violate the plea agreement. The government then asserted that it did not have all of the information relating to Mr. Warren's prior convictions at the time it entered its plea agreement, and that it "quite probably would have made different recommendations had it known that information." 

The defense objected, arguing that the prosecutor's remarks constituted a breach of the plea agreement and that Mr. Warren was entitled to specific performance of the plea agreement. The district court disagreed and stated the government's remarks were simply clarification. The district court again imposed an upward variance in Mr. Warren's case.

Writing for the majority, Judge Nalbandian noted, "We treat plea agreements like contracts" using the traditional principles of contract law. The government's remarks "brought a variance forward by implication - the remark case doubt on the adequacy of the Guidelines range and injected reservations about the plea agreement itself." As a result, the Sixth Circuit held, "The government cannot escape its duties under a plea agreement with a wink and a nod." It cannot suggest "in any way" that a variance is appropriate. As a result, Mr. Warren was entitled to a resentencing before a new judge.

Judge Nalbandian also wrote a separate concurring opinion to advocate for reviewing governmental plea breaches for harmlessness in the future. Because the government conceded the issue of harmlessness, the question is left open for another day.

Congressional Appropriations Riders and Malum Prohibitum: A Medical Marijuana Conundrum

In 2008, Michigan became part of a nationwide trend when it legalized medical marijuana. The Michigan Medical Marijuana Act ("MMMA") allows "caregivers" to possess up to 2.5 ounces of usable marijuana and cultivate up to twelve marijuana plants per patient. Similarly, patients without caregivers may possess and cultivate the same amounts.

Although marijuana remains illegal under the federal Controlled Substances Act, in 2014, Congress attached a rider to one of its appropriations bills called the Rohrabacher-Faff Amendment, or "Section 538," which prohibited the DOJ from using any of the funds appropriated under the bill to prevent certain states from implementing their medical marijuana programs.

Enter Daniel Trevino. Trevino was the founder and sole owner of Hydro World, LLC ("Hydroworld") in Michigan. Although it originally sold fertilizer and indoor growing equipment, the company began selling medicinal marijuana after Michigan voters enacted the MMMA. The problem for Trevino, the Government alleged, was that while he was registered "patient" under the MMMA, he was not a registered "caregiver," nor could he be since he had a previous felony drug conviction. A federal grand jury subsequently charged Trevino with nine substantive marijuana offenses and one count of conspiracy to manufacture, distribute, and possess marijuana with intent to distribute. Prior to trial, Trevino moved to quash the indictment, alleging the Section 538 rider prohibited the Government from proceeding against him. After the district court denied his motion, a jury convicted him of all ten counts, and the district court sentenced him to 188 months in prison.

 In a published opinion, the Sixth Circuit affirmed Trevino's conviction and sentence. Turning to Trevino's claim that the Section 538 rider barred his prosecution, the Court held it did not need to decide whether the rider prohibited Trevino's prosecution because it found that he had not complied with the MMMA in the first place. He conceded he could have never registered as a caregiver under the Act because he had a previous felony drug conviction. The Act also did not protect him as a patient because it only pertained to marijuana-related activity aimed at "treat[ing] or alleviat[ing] the patient's serious or debilitating medical condition or symptoms of [that] condition" -- a condition Trevino never demonstrated he had.

The Court next addressed Trevino's claim the Government presented insufficient evidence to convict him of the conspiracy charge, citing the Sixth Circuit's 1924 decision in Landen v. United States. In Landen, the Sixth Circuit reversed the convictions of wholesale druggists who were convicted of selling intoxicating liquor in violation of the National Prohibition Act. In this case, the Sixth Circuit recognized a narrow exception to the general rule every law student learns: "ignorance of the law is no excuse." As to the Landen defendants, the Court held ignorance of the law provided a defense: (a) where the act at issue is "not inherently wrongful" or malum prohibitum; (b) where the charging statute is ambiguous; (c) where "there is good reason" for the conspirators to think that the planned act is not illegal; and (d) where the accused acts in the actual belief, "supported by good-faith advice of counsel," that the act is lawful.

For Trevino, however, ignorance of the law did not provide a defense. The Court concluded that, unlike the statute at issue in Landen, the CSA was not ambiguous: marijuana is clearly listed as a controlled substance. It also held Section 538 rider also did not alter the CSA's language to make it ambiguous. Finally, the Court noted that, even if Trevino could rely on the Section 538 rider, his conspiracy began in in 2010 -- four years before Congress passed the rider. The limited exception noted in Landen thus did not apply.

The Court also held the the district court did not abuse its discretion in denying the motion to withdraw filed by Trevino's counsel only thirteen days prior to his trial. The Court held the district court correctly analyzed the four-factor test for granting a motion to withdraw as set out in United States v. Steele.

At trial, Trevino objected to the Government's use of summary charts to prove the quantity of marijuana involved, arguing it was inadmissible hearsay. The Court disagreed, holding the underlying records supporting the summaries were admissible as business records under FRE 803(6).

Finally, the Court rejected Trevino's procedural and substantive challenges to his sentence. It held the district court did not err in refusing to grant him credit for acceptance of responsibility because he made the Government satisfy its burden of proof at trial and expressed "defiance" toward federal marijuana prohibitions. The Court also rejected his claim that his sentence was substantively unreasonable, holding he failed to rebut the presumption that his within-Guidelines sentence was unreasonable. 

Court Upholds Broad Appellate Waiver Provision...Again

Binding plea agreements are increasingly rare today, which leaves many defendants to the district court's discretion at sentencing. The converse is true for appellate waivers. In the author's experience, the Government is seeking appellate waivers, either fully or in part, at an increasing rate in plea negotiations.

In United States v. Hollins-Johnson, the Sixth Circuit again considered the scope of an appellate waiver in a written plea agreement. In this case, the district court accepted Ms. Hollins-Johnson's written plea agreement wherein she agreed to plead guilty to a multi-count indictment. In her plea agreement, she agreed to waive her right to appeal her sentence so long as it did not exceed the statutory maximum. 

At sentencing, the district court sentenced Ms. Hollins-Johnson below the applicable statutory maximums for each of her offenses. She subsequently appealed her sentence, arguing the district court erred in denying her request for home confinement and her request to arrange her sentence so she and her husband (who was apparently also indicted) would not face incarceration at the same time.

After Ms. Hollins-Johnson filed her initial brief, the Government moved to dismiss her appeal, citing the appellate waiver from her plea agreement. Ms. Hollins-Johnson responded by arguing that the waiver was ambiguous and that she did not waive her right to challenge the means in which she had to serve her sentence. The Court disagreed, noting that the waiver provision was not ambiguous, and, since the district court did not sentence her in excess of the applicable statutory maximums for her offenses, the plea agreement's appellate waiver provision barred her appeal.

The Court likewise held the Government did not forfeit its dismissal argument for filing it after Ms. Hollins-Johnson filed her initial brief. An appellate waiver, the Court held, was merely a "claim-processing rule."

Absent binding plea agreements, defendants place their sentences squarely in the hands of district judges. In doing so, they should carefully evaluate whether they also wish to waive their ability to appeal the judges' decisions, as Ms. Hollins-Johnson did.

When Congress says "and" they mean "and." And that likely means safety-valve relief for quite a few.

        In United States v Lopez, the Ninth Circuit—with an assist from a member of the Sixth—confirmed that the First Step Act opened the so called "safety valve" a lot wider. The result is sentencing relief to Mr. Lopez, and the chance of more relief for others down the line.

        Normally, mandatory minimums mean exactly what they say: a minimum amount of time in prison that a judge has no choice but to impose upon conviction. But Congress has long provided relief for some individuals convicted of certain controlled-substance offenses. Known as the safety valve, 18 USC § 3553(f) sets out a few situations where a judge may exercise her discretion to depart from a mandatory minimum. 
       Prior to the First Step Act, the safety valve mostly stayed shut. To make a long story short, the safety valve was not an option if an individual had more than one criminal-history point. 

        But in the First Step Act, Congress tweaked the language and said the safety valve should open so long as an individual did not have “(A) more than 4 criminal history points ... (B) a prior 3-point offense ... and (C) a prior 2-point violent offense.” 18 USC § 3553(f)(1)(A)–(C) (emphasis added).
        Enter Mr. Eric Lopez. A CBP agent found Mr. Lopez in possession of narcotics. Charged and convicted on one count of importing more than 50 grams of methamphetamine, 21 USC § 952; 21 USC § 960, Mr. Lopez faced a five-year mandatory minimum. But Mr. Lopez had only one relevant prior conviction: a decade-plus-old arrest for vandalism. Somehow, Mr. Lopez served 13-months for spray painting something onto a building, making that vandalism a 3-point offense under the guidelines.
        But taking notice of the change to the safety valve’s plain language, the district court believed the new language to be somewhat ambiguous and gave Mr. Lopez the benefit of the doubt. The judge opened the valve and gave Mr. Lopez 4 years instead of 5.
The government appealed, though they conceded quite a bit of ground to Mr. Lopez.
        The Ninth Circuit saw no ambiguity in the “and” in § 3553(f)(1). If you really want a primer on how to run a plain language analysis in today's federal courts, check out Lopez, 998 F.3d at 436-437. To figure out what “and” means, the panel pages through Scalia & Garner’s greatest hits, a lot of dictionaries, and a 1990s Senate Legislative Drafting Manual. It’s impressive.
        The panel concluded that when Congress puts three items in a list and connects those three items with the word “and” the result is a list of three conditions. And all three conditions must be satisfied. Carry that rule over to the safety-valve statute, and the valve opens unless an individual has (1) more than 4 points; (2) a prior 3-point offense; and (3) a prior 2-point violent offense. 
        Having satisfied only one of those three conditions, that 3-point vandalism, Mr. Lopez prevailed. The panel affirmed the district court's decision to give four years instead of the mandatory five. And this published opinion makes plain the valve is very likely open for many more going forward. United States v. Lopez, 998 F.3d 431 (9th Cir 2021).