More on Career Offenders and 851 Enhancements
August 14, 2011 Leave a comment
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.