These briefs on a series of questions, including whether the government is required to prove knowledge of drug type and quantity to trigger mandatory minimum and increased maximum sentences in drug cases were filed in the 9^th Circuit by the federal defender and sentencing resource counsel in LA.

Co-Sponsored by Georgetown University Law Center’s American Criminal Law Review

The landscape of sentencing policy has shifted in recent years, with federal and state lawmakers advocating fewer draconian penalties and beginning to scale back certain sentences. It is clear that the United States stands at a critical juncture for sentencing reform. This symposium is designed to equip practitioners and policy advocates with the latest strategies and research to seize the moment and foster more rational and humane policies.

The First Step Act was signed into law on Dec. 21, 2018. NACDL and its members have long pressed to fix the unjustly severe federal sentencing regime, advocating for much more sweeping changes than are included in the First Step Act. Although the law does not go nearly as far as NACDL would like, it will benefit many prisoners and has important implications for practitioners. In these members-only webinars, leading experts examine the intricacies of the First Step Act.

The instant Indictment and a companion Indictment accuse 25 people, mostly young, overwhelmingly people of color, and many of them heroin addicts, of a conspiracy conducted essentially by communication through cell phones.

Argument: I am CJA counsel appointed by the Court to represent my client, Defendant Eddie MartinezFigueroa, who has been charged in a multi-defendant Indictment alleging a conspiracy to possess and distribute heroin. I submit this Memorandum in support of the Defendant’s request for a Protective Order to compel the Government to provide discovery and particularization of those electronically recorded intercepts which allegedly involve him directly.

My client is 26 years old and by virtue of a prior drug conviction is facing a mandatory minimum sentence of 20 years in prison.

The instant Indictment and a companion Indictment accuse 25 people, mostly young, overwhelmingly people of color, and many of them heroin addicts, of a conspiracy conducted essentially by communication through cell phones. Through a seven month investigation involving the DEA, the New York State Police, the United States Attorney’s Office, and other law enforcement agencies, the Government employed video and personal surveillance, GPS tracking, monitoring of pen registers, and four separate Title III eavesdropping warrants, targeting four different cell phones and capturing both oral and texting communications.

Memorandum Granting Compassionate Release 

Argument: In Feb. 2000, a jury convicted R.V. Young of five counts of bank robbery, 18 U.S.C. § 2113(a) & (d), and five counts of using a firearm during a crime of violence, 18 U.S.C. § 924(c)). All told, Young was sentenced to 1,107 months (92.25 years) imprisonment. Judge Trauger held that: (1) the “drastic change” effected by the First Step Act's amendment of the statute that authorized a longer sentence for a second conviction than a first for using a firearm during a crime of violence itself constituted an extraordinary and compelling reason to reduce Young’s sentence; (2) Young’s age, health conditions, and 19 years in prison constituted extraordinary and compelling reasons to reduce his sentence; and (3) that a hearing was required for the district court to consider the relevant sentencing factors to determine the appropriate sentence.

Order granting motion for compassionate release 

Argument: Grant based on § 851, reducing 300-month meth sentence to time served, a 10-year reduction. Client received an 851 he would no longer be eligible for, plus signs of dementia (documented by family letter although not in BOP records), age, and some discussion of the fact that the case involved entrapment in the government’s undercover-enhanced case, even though jury still convicted.

Motion (April 23, 2021)

Response (may 21, 2021)

Reply (June 3, 2021)

Order (June 23, 2021)

Argument: Grant based on family circumstances.  The initial motion focused on changing societal attitudes about marijuana, but the attorney pivoted and smartly added a family circumstances argument in the reply brief, which turned out to be the winning issue. A great lesson on the importance of kitchen sinking our arguments in second look/excessive sentence cases---throw it all in.

Motion to Stay (Feb. 26, 2021)

Joint Stipulated Motion to Lift Stay (Sept. 10, 2021)

Supplemental Motion (Sept. 15, 2021)

Gov. Response (Sept. 16, 2021)

Order (Sept. 16, 2021)

Argument: William Cloud is a 74-year-old inmate suffering from chronic kidney disease, hypertension, obesity, and history of stroke—among other conditions—which placed him at a considerably increased risk of severe illness from COVID-19 and the Delta variant. Mr. Cloud served nearly 14 years in prison.  Notably, Mr. Cloud had been given one of the harshest fraud sentences in the history of his district, the Western District of North Carolina. While the government initially agreed to a small reduction in sentence, but not time-served, defense counsel ultimately persuaded the government to agree to a time-served sentence, which the court the granted.  Instead of a release date of November 19, 2030, Mr. Cloud was released from prison on September 22, 2021. 

Compassionate Release Motion (filed under seal/unavialable) 

Gov Response in Opposition (Sept. 7, 2021)

Motion for Leave to File Reply Brief (required in the MDFL)

Reply Brief (Oct. 7, 2021)

Order (Mar. 15, 2022)

Argument: Compassionate release grant for an 64-year-old individual with a host of medical conditions (obesity, pre-diabetes, hypertension, hyperlipidemia, an aortic aneurysm, chronic renal stones, an enlarged prostate, depression, likely post-traumatic stress disorder (PTSD), and a history of nearly fatal pancreatitis).  Defendant argued that the medical conditional was dire because of the BOP’s failure to adequately diagnose, monitor, and treat his illness. This decision has good language about BOP’s failure to provide adequate medical care as the basis for finding extraordinary and compelling reasons for release.  Importantly, this case came out of the MDFL, which can only argue extraordinary and compelling reasons as defined in the commentary to § 1B1.13.  The court also held a hearing on this case via zoom in February 2022.  

Opinion and Order

Argument: Case started out as an excessive sentence case (the two §851s that created life mandatory mininum wouldn't apply today), but due to bad case law in Sixth Cicuit, attorney Chloe Smith smartly pivoted to more traditional/COVID arguments. After Judge Danny Reeves in the EDKY denied the motion, Chloe appealed the denial of the CR motion to the Sixth Circuit. 

The Sixth Circuit reversed and remanded the district court’s denial of compassionate release to a 90-year-old, terminally ill, bedridden defendant serving mandatory life for non-violent marijuana offense that would only be subject to a 10-year mandatory minimum today. In reversing, the Sixth Circuit found that the “district court’s analysis of the 18 U.S.C § 3553(a) factors leaves us “ ‘with a definite and firm conviction that the district court committed a clear error of judgment.’ ”

By overly emphasizing Estrada-Elias’s history of nonviolent crimes, ignoring the low likelihood that Estrada-Elias will re-offend, and mischaracterizing the reality of the gap between Estrada-Elias’s present and prior convictions, the district court engaged in a substantively unreasonable balancing of the § 3553(a) factors and therefore abused its discretion.

The court reversed and remanded for Judge Reeves to make a finding on extraordinary and compelling reasons prong, which it has assumed applied without actually holding as such.  

Order granting motion to reduce sentence 

Argument: Angela Beck, who was serving a sentence for drug and firearms offenses, filed a motion under the First Step Act of 2018 seeking the reduction of her sentence and immediate compassionate release due to invasive cancer and the Bureau of Prison's history of indifference to her treatment. Judge Eagles held that: (1) BOP’s gross mismanagement of medical care for Ms. Beck’s invasive breast cancer qualified as an extraordinary and compelling reason to support the reduction of her sentence and a compassionate release, and (2) reduction of Ms. Beck’s sentence to time served, approximately 76 months, for drug and firearms offenses was sufficient to serve the purposes of punishment.

Opinion from the Eleventh Circuit 

Argument: Eleventh Circuit Creates Circuit Split on Compassionate Release Criteria: In a lengthy opinion, the Eleventh Circuit split from seven sister circuits to hold that Sentencing Commission Policy Statement 1B1.13 remains applicable for a Section 3582(c)(1)(A) motion, "no matter who files it." In other words, in the Eleventh Circuit, district courts are now constrained by the restrictive definitions of “extraordinary and compelling reasons” listed in the commentary of § 1B1.13.

NACDL hereby responds to the Commission’s request for comment on retroactive application to Amendment 3 from this year’s amendment cycle, which decreased the drug table set forth in USSG §2D1.1 by two-offense levels across all drug types and without limit to any specific offender characteristics. NACDL joins with the Federal Defenders and the Practitioners Advisory Group in whole-heartedly endorsing retroactivity without any limitation.

On behalf of the National Association of Criminal Defense Lawyers, I am grateful to the Commission for promoting dialogue on these important issues and strongly urge retroactive adoption of the elimination of the residual clause.