More on Career Offenders and 851 Enhancements

By Tommy Walker, USP Lewisburg, edited and approved by Craig Coscarelli

 Many federal inmates are anxiously awaiting new legislation as a result of our already poor economy and subsequent impending budget cuts. Our prison system is filled with non-violent offenders for whom other approaches would be both more effective and more just. For example, non-incarcerative treatment for individuals who have an addiction and/or mental illness have proven successful. Many of our prisons are not just overcrowded, they are bursting at the seams, causing unsafe conditions for inmates and staff. See e.g., Brown v. Plata, No. 2011 U.S. Lexis 4012 (Nov. 30, 2010) The Supreme Court requiring the State of California to reduce its prison population. Id. Reform of Our criminal justice system is necessary, and pertinent to cutting the deficit. The Honorable William G. Young, (United States District Judge), couches this problem in his own word by stating:

 “For seventeen years federal courts had been sentencing offenders unconstitutionally. Think about that. The human cost incalculable – thousands of Americans languish in prison under sentences that today are unconstitutional. The institutional cost are equally enormous – for seventeen years the American jury was disparaged and disregarded in derogation of its constitutional function; a generation of federal trial judges has lost track of certain core value of an independent Judiciary because they have been brought up in a sentencing system that strips the words ‘burden of proof’, ‘evidence’, and ‘facts’ of genuine meaning; and the vulnerability of our fair and impartial federal trial court system to attack from the political branches of our government has been exposed as never before in our history.”

United States v. Kandirakis, 44 F. Supp.2d 282(D.Mass 2006).

 This problem and the new legislation or rulings that have arisen from it should be explored. For example, on August 5, 2011, the State of California enacted new legislation preventing convictions based solely on jailhouse informants. That is, testimony by jailhouse informants will no longer be enough to convict criminal defendants in California. The new legislation (SB687), submitted by Sen. Mark Leno, D-San Francisco, applies to cases in which an inmate, often in exchange for leniency, testifies that a cellmate confessed to a crime. Sen. Leno said informant testimony is often self-serving and unreliable and can lead to convictions of the innocent. More importantly, similar laws are in effect in 17 other states. But, the issue of retroactivity is unclear. And secondly as to new rulings, on July 27, 2011 a Federal Judge has declared that Florida’s state drug laws are unconstitutional. See Shelton v. Florida, No. 6:07-co-839-cv-35-KRS(M.D. Fla. July 27, 2011), (Florida’s drug distribution law violation due process because it lacks a criminal intent requirement). Under the state law the Prosecutor did not have to prove that Shelton know he was carrying or distributing Cocaine.

With that said, its time to take a second look at your prior state convictions. The enactment of new legislation and/or new case law could result in a claim of actual, factual, or legal innocence of your prior state conviction and if proven successful, can require resentencing in federal courts for career offender status and section 851 enhancements. See 18 U.S.C. § 3559(c)(7):

 ” Resentencing upon overturning of prior conviction for a serious violent felony or serious drug offense that was a basis for sentencing under this subsection is found, pursuant to any appropriate State or Federal procedure, to be unconstitutional or is vitiated on the explicit basis of innocence, or if the convicted person is pardoned on the explicit basis of innocence, the person serving a sentence imposed under this subsection shall be resentenced to any sentence that was available at the time of the original sentencing.” Id.

See also, United States v. Williams, 326 F.3d 535 (4th Cir. 2003), Williams appealed the District Court’s enhancement of his sentence under the Armed Career Criminal Act, 18 U.S.C. 924(e), contending that two of his three prior drug convictions could not serve as predicate offenses under 924(e) because they were not “serious drug offenses”. Williams sentence was vacated and remanded because his prior New Jersey State convictions were punishable by a maximum of five years, and did not meet the definition of a “serious drug offense”, under 924(e)(2)(A)(i). More importantly, the court found that this legal reasoning was not inconsistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), even though Apprendi carves out an exception for prior convictions, the Court’s concern in Apprendi was whether the constitution requires the fact of a prior conviction to be submitted to a jury and proved beyond a reasonable doubt when used to enhance a sentence. Id. In Williams, the question was whether 924(e) allows a federal court to overlook a State’s procedures in determining what constitutes a serious drug offenses. Williams, 326 F.3d at 540.

In sum, anyone with career offenders status or a 21 U.S.C. § 851 enhancement should explore the new legislation and new case law relating to your prior state convictions. It just might present a ripe or be a golden opportunity to obtain relief by way of a significant sentence reduction. If you have any questions or need legal assistance, please do not hesitate to contact Craig.

This Month’s Favorable Cases


2nd Circuit


Rivera v. Cuomo, (No. 10-224)(2nd Cir. August 9, 2011)–In a petition for habeas relief from the conviction of petitioner for depraved indifference murder, New York Penal Law section 125.25(2), petition is granted where district court erred in holding that the applicable law of depraved indifference murder was the law in effect when petitioner was convicted, instead of the law as it existed when petitioner’s conviction became final, and because the trial evidence was legally insufficient to support a conviction.

 United States v. Ferguson, (No. 08-6211)(2d Cir. Aug 1, 2011)–The defendants, four executives of General Reinsurance Corporation (“Gen Re”) and one of American International Group, Inc. (“AIG”), appeal from judgments of the United States District Court for the District of Connecticut (Droney, J.), convicting them of conspiracy, mail fraud, securities fraud, and making false statements to the Securities and Exchange Commission. The charges arose from an allegedly fraudulent reinsurance transaction between AIG and Gen Re that was intended to cure AIG’s ailing stock price. the defendants’ convictions were vacated because the district court (1) abused its discretion by admitting the stock-price data, and (2) issued a jury instruction that directed the verdict on causation. Accordingly, the Court vacated the defendants’ convictions and remanded for a new trial.

  3rd Circuit


 Espinal v. Attorney Gen. of the US, (No. 10-1473)(3rd Cir. August 3, 2011)– In a petition for review of a decision of the BIA denying petitioner, a native and citizen of the Dominican Republic, relief from an order of removal on the ground that it lacked jurisdiction because petitioner had been removed from the United States, 8 C.F.R. section 1003.2(d), judgment of the BIA is reversed where section 1003.2(d) conflicts with the IIRIRA, 8 U.S.C. section 1229a(c)(6)(A), (7)(A).

 4th Circuit


United States v. Bonner, (No. 10-4768)(4th Cir. August 5, 2011)–In an appeal of a district court’s order overturning the conviction of defendant for armed robbery, judgment of the court is affirmed where the government failed to produce sufficient identity evidence placing defendant at the robbery and relied on unsubstantiated, unscientific inferences to bolster its minimal evidence.

6th Circuit


 United States v. Walker, (No. 09-6498)(6th Cir. August 11, 2011)– Federal prisoner Darrell Walker challenges the substantive reasonableness of his thirty-six-month sentence for escape. Finding that the district court impermissibly lengthened Walker’s sentence to promote his rehabilitation, we vacate his sentence and remand for resentencing.

 Stumpf v. Houk, No. 01-3613 (6th Cir. Aug. 11, 2011)– Recent polling results and statistical compilations support many of the economic and penological arguments that have long been raised in opposition to the imposition of the death penalty in the United States. Other statistics bolster objections to a form of punishment that, possibly because of its finality, has been shown to have been misdirected. Such polemical discussions, while interesting, are, however, better suited for the deliberations in the chambers of our state and national legislatures. In this appeal, we are not asked to involve ourselves in those debates, or even in a discussion of the constitutionality of the death penalty. Instead, we are required to examine only the constitutional ramifications of court proceedings that are alleged to have infringed John David Stumpf’s right to be sentenced in accordance with longstanding principles of due process and fundamental fairness. We conclude that those principles were violated by the state in seeking to execute Stumpf even after it became clear that the basis for the imposition of the death penalty had been seriously compromised in the subsequent prosecution of Stumpf’s accomplice, as further explained below. Indeed, the facts of this case exemplify the arbitrariness that prior decisions of the United States Supreme Court and of this court have decried as violative of fundamental constitutional safeguards. As a result, we once again reverse the judgment of the district court and remand this matter for issuance of a writ of habeas corpus, unless the State of Ohio conducts a new sentencing hearing for Stumpf within 90 days of the issuance of this opinion.

 7th Circuit


 United States v. Rutledge, (No. 10-2734)(7th Cir. August 8, 2011)– At the jury selection preceding Anthony Rutledge’s criminal trial, the prosecutor used peremptory challenges to strike the only two African-American members in the venire. Suspecting that these actions violated the Equal Protection Clause, Rutledge’sattorney objected to the strikes using the three-step procedure established in Batson v. Kentucky, 476 U.S. 79 (1986). This appeal focuses solely on Batson’s third step, which requires the district court to make a finding of fact regarding the prosecutor’s credibility after the prosecutor has offered a race-neutral reason for the strike (step two). Here, the district court denied Rutledge’s Batson challenge after saying that the government’s reasons were “nonracial,” but without making any finding on the prosecutor’s credibility. As we have recently emphasized, “we cannot presume that the prosecutor’s race-neutral justification was credible simply because the district judge ultimately denied the challenge.” United States v. McMath, 559 F.3d 657, 666 (7th Cir. 2009). The district court must make an independent credibility determination at step three. Because we cannot find the necessary credibility finding in this record, we are unable at this stage to make an informed decision about the court’s decision to deny the Batson challenge. We therefore remand the case to the district court so that it can fill this void.


 8th Circuit


 United States v. Tamara Lynn Heid, (No. 10-3230)(8th Cir. August 11, 2011)– A factual basis did not exist for defendant’s plea of guilty to a charge of conspiring to launder money, and the district court erred in denying her motion to withdraw the plea; guilty plea vacated, and the case remanded for further proceedings.

United States v. Jimmie Coutentos,(No. 10-2625)(8th Cir. August 10, 2011)–Claim that trial counsel rendered ineffective assistance of counsel by failing to timely raise a statute-of- limitations defense to possession of child pornography was fully developed for purposes of review and would be considered on direct appeal; counsel’s failure to raise the defense on the possession count fell below an objective standard of reasonableness; the failure affected the outcome of the case since there was a reasonable likelihood that assertion of the defense would have led to dismissal of the charge; as a result, the conviction and sentence for possession of child pornography must be vacated.

United States v. Manuel Quintero, (No. 10-3280)(8th Cir. August 8, 2011)–The district court’s finding with respect to the voluntariness of a consent to a search is reviewed for clear error; rousting defendant from bed at night helped create a more coercive atmosphere, and the district court did not err in considering this fact in its “voluntariness” analysis; the court considered the factors the government argued supported its claim that the consent was voluntary and did not err in finding coercive factors outweighed the factors supporting voluntariness.

United States v. Renner, No. 10-2502 (8th Cir. Aug. 8, 2011), an Eighth Circuit panel rejects a government appeal when the sentencing shoe ended up on the other foot because the sentencing judge in a sense reduced a sentence based on “convicted conduct.” Here are the details from the start and end of the Renneropinion: A jury found Steven Mark Renner guilty of four counts of tax evasion, in violation of 18 U.S.C. §7201, and the district cour2 sentenced him to 18 months’ imprisonment. Renner appeals his convictions, arguing that the government constructively amended the indictment through the evidence presented at trial; the instructions erroneously defined “taxable income” and “good faith”; and the evidence was insufficient to support his convictions. The United States appeals Renner’s sentence, contending that the district court erroneously relied on a fact rejected by the jury in imposing a sentence below the applicable Sentencing Guidelines range. We affirm….

The government argues that the case must be remanded for resentencing because the district court abused its discretion as a matter of law, and thereby imposed an unreasonably lenient sentence, by granting a downwards variance from the Advisory Guidelines range of 41 to 51 months based on a fact — good-faith reliance upon expert advice — considered and rejected by the jury….It is …”improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt.” United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2010) (holding that the non-contradiction principle survived United States v. Booker, 543 U.S. 220 (2005)). Although a close question is presented, we believe the district court’s sentence was not based on facts that contravened the jury’s verdict. From the sentencing transcript it is clear that the district court fully accepted the jury’s rejection of the good-faith defense, and the district court did not find otherwise. Rather, among the factors considered, the district court relied on the fact that Renner did consult with professionals, a fact the court believed distinguished Renner from other tax evaders who made no effort whatsoever to seek professional advice. The district court was entitled to consider that Renner at least consulted tax professionals, even if the jury did not believe that Renner met all of the requirements for a good-faith defense. Our review of the sentencing transcript convinces us that the district court did not commit a procedural error, and that the sentence was substantively reasonable.


10th Circuit


United States v. Weeks, (Nos. 09-4171, 09-4183)(10th Cir. August 9, 2011)– Robert G. Weeks pled guilty to conspiracy to commit securities fraud. He now argues his guilty plea was not knowing and voluntary and was the result of ineffective assistance of counsel. Weeks filed a timely pro se motion under 28 U.S.C. § 2255 to vacate his conviction, raising a claim of ineffective assistance of counsel on six grounds. The district court denied relief on five of the grounds, but granted an evidentiary hearing on Mr. Weeks’ claim that his counsel was ineffective for refusing his request to file a direct appeal from his conviction. Weeks filed a direct appeal. He also appealed the district court’s denial of the remainder of his § 2255 ineffective assistance claims without an evidentiary hearing, as well as the denial of his motion to amend the petition. We consolidated the appeals, and we granted a certificate of appealabilty to Weeks on the denial of his § 2255 petition. Reviewing Mr. Weeks’ pro se petition liberally, as we must, we conclude the district court abused its discretion when it denied Mr. Weeks’ claim that Mr. Barber had provided ineffective assistance of counsel in relation to the plea agreement without permitting further development of the record. We therefore vacate the district court’s order denying in part Weeks’ § 2255 motion. The matter is remanded for an evidentiary hearing and a new determination based thereon



Current State of S 1231– Second Chance Reauthorization Act

Craig M COSCARELLI, Paralegal                                                        9211 West Road, Suite-143-149                                                                                                    Houston, Texas 77064                                                                                                          (832)814-1050 

 Current State of S 1231– Second Chance Reauthorization Act

        There have been numerous inquiries and confusion regarding the Second Chance Reauthorization Act Bill (“SCRA”) now before the Senate. Many believe that SCRA brings back parole. This is not true. Many think that SCRA is going to be voted on this month by Congress. This is not true because Congress is now in August recess. The SCRA has passed through the Senate Sub-Committee and is now headed to the full Senate to be voted on at sometime this year.

       Many have asked about the good time portion of SCRA and what changes it would make. It will be explained what the current version of SCRA will do below. Many have also asked about how SCRA will affect the elderly. It will be explained below what the current version of SCRA states. The reason that the current version of SCRA is mentioned is because these Bills often get watered down or changed in their final approved version when they become law. The first thing to remember is that we cannot trust politicians just like we all know that we cannot trust prosecutors. The original Second Chance Act Bill had bipartisan support and easily passed. However, with all the budget cuts that have been discussed and proposed, it is unknown what kind of support any Bill will have concerning Inmates. There will be updates of any new developments on this Bill. Craig

1. Proposed SCRA Goodtime Benefits

       The SCRA would allow those Inmates who are eligible to earn good time to earn up to the full 54 days of good time each year of their sentence. Currently, the calculus that the Bureau of Prisons (“BOP”) uses affords Inmates only 47 days of good time per year. The SCRA’s allowance of up to the full 54 days of good credit time each year would be retroactive – that is, prisoners who have received only 47 days of good time each year in the past would receive the additional seven days per year they were denied under the current statute.

      In addition, Inmate would not be eligible to receive the additional 60 days of good time credit for successfully participating in reentry programs if they have more than one conviction for an offense involving rape or have a conviction for a sex offense against a minor. However, the extra 60 days of good time for completing programs would not be retroactive. The SCRA would not allow prisoners Inmates to receive the additional 60 days of good time credit for reentry programs they completed before the SCRA is signed into law.

     Some Inmates who successfully complete the Residential Drug Abuse Program (RDAP) may receive up to 12 months off of their sentences. If a person successfully completes the RDAP and other programs that are “demonstrated to reduce recidivism,” he would be able to receive both the extra good time credit and the RDAP sentence reduction. However, the total amount of good time awarded would not be permitted to exceed 33 percent of the sentence imposed on the prisoner. The SCRA’s changes to good time would go into effect 90 days after the president signs the bill into law.

2. Affect on Elderly Inmates

The SCRA would resume, with some modifications, a pilot program for federal Inmates called the Elderly and Family Reunification for Certain Nonviolent Offenders pilot program. The program could be established at one or more BOP prisons.

 If SCRA is passed, elderly prisoners would have to meet all of the following criteria to be chosen for the pilot program:

i. Not less than 60 years of age; and

ii. Serving a term of imprisonment that is not life imprisonment —

       • Based on conviction for an offense or offenses that do not include any  crime of violence (as defined in 18 U.S.C. § 16), sex offense (as defined in § 111(5) of the Sex Offender Registration and Notification Act), offense described in 18 U.S.C. § 2332b(g)(5)(B), or offense under 18 U.S.C. § 37, AND

• Has served 10 years OR 75 percent of the term of imprisonment to which the offender was sentenced, whichever is longer (75 percent becomes more than 10 years when the sentence is for longer than 160 months); and

iii. Has not been convicted in the past of any federal or state crime of violence, sex offense, or other offense described in clause (ii) (see above); and

iv. Has not been determined by the BOP (and in the sole discretion of the BOP) to have a history of violence or of engaging in conduct constituting a sex offense or other offense described in clause (ii), even without a record of convictions; and

v. Has not escaped, or attempted to escape, from a BOP institution; and

vi. The BOP has determined that releasing the prisoner to home detention will result in a substantial net reduction of costs to the federal government; and

vii. The BOP has determined that the prisoner is at no substantial risk of engaging in criminal conduct or of endangering any person or the public if he is released to home detention.

      As in all BOP programs, it is hurry up and wait. If the SCRA passes, it would require the BOP to carry out this program from October 2012 to September 2016. Before the BOP can get the program running, SCRA must become law.






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