Federal Criminal Lawyer Blog

Today President Obama signed the Fair Sentencing Act of 2010 into law. This federal law reduces the disparity between criminal sentences for crack and powder cocaine from 100-to-1 to 18-to-1 and eliminates the mandatory minimum five-year sentence for simple possession of crack cocaine. While this is a step in the right direction, a significant disparity remains and the law has not been made retroactive.

The major features of the law include the following:
• The five-year mandatory minimum sentence now applies to cases involving at least 28 grams of crack cocaine, compared to the prior 5 grams.
• The ten-year mandatory minimum sentence now applies to cases involving at least 280 grams of crack cocaine, compared to the prior 50 grams.
• The Act eliminates a five-year mandatory minimum for simple possession of crack cocaine.
• The Act increases financial penalties for major drug traffickers.
• Within 90 days, the United States Sentencing Commission (USSC) must increase the sentences under the advisory Sentencing Guidelines for defendants using violence in drug trafficking crimes and emphasize certain aggravating and mitigating factors.
• The Comptroller General must report to Congress on the effectiveness of drug court programs.
• In five years, the USSC must report to Congress on the impact of the law’s changes to cocaine sentencing law.

The full text of the Act is available here.

Last week, the Eleventh Circuit federal appeals court decided U.S. v. Sneed. In this Armed Career Criminal Act (ACCA) case, the Court decided that U.S. v. Shepard, decided by the Supreme Court in 2005, abrogated the Eleventh Circuit’s 2000 decision in U.S. v. Richardson. The Court held that sentencing courts may look only to Shepard-approved material and facts to which the defendant has assented (such as undisputed facts in the PSI) in determining whether ACCA prior offenses were committed on different occasions.

As we explained in this post, the ACCA provides for a mandatory minimum sentence of 15 years for federal criminal defendants who have three previous convictions for violent felonies or serious drug offenses. Those offenses must have been committed on temporally distinct occasions. In Sneed, the defendant had three previous drug convictions that were charged in a single indictment in Alabama. The state indictment did not provide dates or times for the offenses, so the district court looked to police reports attached to the government’s sentencing memorandum to determine that the offenses were committed on different occasions.

In 2000, the Eleventh Circuit held in Richardson that “determining whether crimes were committed on occasions different from one another requires looking at the facts underlying the prior convictions.” In that case, police reports showed that the prior crimes had been temporally distinct and their accuracy was not contested. The Eleventh Circuit relied on the police reports and concluded that the crimes were distinct.

The Supreme Court decided Shepard in 2005, holding that sentencing courts may only consult certain materials in determining the nature of a defendant’s prior convictions for purposes of ACCA. The Court expressly rejected police reports and stressed developments in the law, Jones and Apprendi in particular, addressing the constitutional concerns requiring a jury’s finding of a disputed fact about prior convictions where that fact is essential to increase a potential sentence. Shepard-approved materials include charging documents, plea agreements, transcripts of plea colloquies, findings of fact and conclusions of law from bench trials, and jury instructions and verdict forms.

The Eleventh Circuit stated that Richardson’s conclusion that courts may look to certain facts underlying prior convictions for the different occasions inquiry is still correct, but held that Shepard abrogated its approval of the use of police reports. Although Shepard addressed a different ACCA determination, the two statutory predicates (type of offense and different occasions) are contained in the same sentence. The Eleventh Circuit held that “there is simply no distinction left” between type of offense and different occasions inquiries for the scope of permissible evidence to be different in determining each statutory predicate.

The bottom line is that the defendant’s mandatory minimum 15-year sentence is tossed, although he still faces a potential max of 10 years for being a felon in possession.

The opinion in this case is available here.

Congratulations to Jake Waldrop and the Federal Defender Office here in Atlanta for winning one at the Court of Appeals this week! Yesterday, the Eleventh Circuit held that Federal Rule of Criminal Procedure 35, which imposes a seven-day jurisdictional time limit on modifications of sentences, applies to crack resentencings, as well as original sentencings.

The opinion in the case, U.S. v. Phillips, is available here.
The Federal Defender blog has a post on the case here.
More information on crack resentencing is available here at the Sentencing Law and Policy blog.

Last week the Eleventh Circuit, which sits here in Atlanta, Georgia, decided U.S. v. Jules. The Court held that “when a district court intends to rely on new information in deciding a motion for the modification of a sentence pursuant to 18 U.S.C. § 3582(c)(2),” both the federal government and the criminal defendant are entitled to notice of the information and an opportunity to respond.

Jules was originally sentenced to 151 months, the bottom of his Guidelines range, for conspiracy to possess with intent to distribute 50+ grams of cocaine base. The Guidelines were subsequently amended to reduce the base offense-level in such a case. Thereafter, Jules requested a modification of his sentence. The probation office sent a memo to the district court detailing misconduct by Jules while in prison. That memo was neither docketed nor provided to either of the parties. The district court relied on the sanctions in the memo in denying Jules’ motion for modification.

The Eleventh Circuit held that, although a defendant in a § 3582(c)(2) proceeding is not afforded all of the protections as at an original sentencing, the “fairness and due process principles embodied in the Federal Rules of Criminal Procedure, the Sentencing Guidelines’ policy statements, and the reasoning of [the Fifth and Eighth Circuits] compel us to hold that each party must be given notice of and an opportunity to contest new information relied on by the district court in a § 3582(c)(2) proceeding. The court also stated that a hearing is permissible for allowing parties to contest such information, but not necessary.

The Eleventh Circuit’s opinion is available here.

Last week the Supreme Court vacated and remanded Briscoe v. Virginia for proceedings consistent with the decision in Melendez-Diaz v. Massachusetts. We discussed Melendez-Diaz last summer in this post.

In Melendez-Diaz, the Supreme Court held that crime lab reports are testimonial statements covered by the Confrontation Clause of the Sixth Amendment. For such reports to be admissible, the forensic analysts must testify as witnesses in criminal trials, both federal and state. Shortly after that decision, the Court granted cert in Briscoe, a case presenting the same issue. Justice Scalia criticized the grant of cert, asking, “Why is this case here except as an opportunity to upset Melendez-Diaz?”

He asked that question at oral argument less than one month ago. SCOTUSblog covered that oral argument thoroughly in this post. They also explained last week’s decision in the context of the changing Court in the first half of this SCOTUSblog post.

The extremely short per curium opinion is available here.

Photo courtesy of the U.S. Army.

This week, the Supreme Court agreed to hear Abbott v. U.S. and Gould v. U.S. These criminal cases involve a deep circuit split among the federal courts that we addressed in this post in September, when the 11th Circuit decided U.S. v. Segarra.

The Armed Career Criminal Act (ACCA), drug laws, and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The ACCA and drug minimums are often longer than the minimum called for by § 924(c). § 924(c) contains a prefatory clause, called the “except” clause, that applies the subsection “[e]xcept to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law.” The plain language of that clause prohibits application of § 924(c) where defendants are subject to greater minimums.

Continue reading "Supreme Court Grants Certiorari in § 924(c) Cases Regarding Mandatory Minimums in Federal Criminal Firearms Cases" »

Ed. Note: The first of this month, the U.S. Sentencing Commission’s 2009 Amendments to the federal Sentencing Guidelines went into effect. This is our final post analyzing some of the more important changes to the Guidelines. The Sentencing Commission’s reader-friendly guide to the 2009 amendments is available here.

As we discussed in this post in July, a new federal law directed at online pharmacies went into effect this April. The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription, or to advertise for such distribution. In response to this Act, the United States Sentencing Commission made several amendments to the Sentencing Guidelines, including a new sentencing enhancement at §2D1.1, increasing the base offense levels for hydrocodone offenses, and assigning guidelines to the two new offenses created by the Act.

New Sentencing Enhancement at §2D1.1

The Commission added a new sentencing enhancement, which applies when the offense involved a Schedule III controlled substance and death or serious bodily injury resulted from the use of the drug. The enhancement provides a maximum of 15 years, or 30 years for second or subsequent offenses. Schedule III includes such drugs as anabolic steroids, morphine, hydrocodone, and ketamine.

The amendment adds two alternative base offense levels to §2D1.1 [Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy]. §2D1.1(a)(4) is added to provide a base offense level of 26 for a Schedule III conviction involving death or serious bodily injury resulting from the use of the drugs. §2D1.1(a)(3) now provides for a base offense level of 30 in such a case where the defendant has one or more prior convictions for similar offenses.

Increased Base Offense Levels for Hydrocodone

The amendments modify the Drug Quantity Table in §2D1.1 to specify the base offense levels for hydrocodone as follows:

Two New Offenses

Our previous post discussed the new offenses created by the Act. 21 U.S.C. § 841(h) prohibits the distribution, delivery, or dispensing of controlled substances over the Internet without a valid prescription. The Commission has referred this offense to §2D1.1. That Guideline already includes a two-level enhancement where a controlled substance is distributed “through mass-marketing by means of an interactive computer service” i.e., the Internet.

The second new offense at 21 U.S.C. § 843(c)(2)(A) prohibits use of the Internet to advertise the sale of controlled substances. § 843(c) is already referenced to §2D3.1, but the amendment changes the title of the Guideline to "Regulatory Offenses Involving Registration Numbers; Unlawful Advertising Relating to Scheduled Substances; Attempt or Conspiracy."

Yesterday a jury found Georgia criminal defense attorney J. Mark Shelnutt not guilty on all counts. He was acquitted of money laundering, drug conspiracy, and attempted bribery.

Three weeks ago, the Eleventh Circuit Court of Appeals, which hears appeals from cases in Georgia, Florida, and Alabama, decided U.S. v. Velez in favor of the defendant. That case involved a money laundering charge against a criminal defense attorney under 18 U.S.C. § 1957. Shelnutt was prosecuted under 18 U.S.C. § 1956, which required federal prosecutors to attempt to prove that ill-gotten gains were used for certain prohibited purposes, including facilitating underlying criminal activity, tax evasion, or evading money laundering statutes. The prosecution was unable to prove its case.

More information in the Shelnutt case can be found here.
Our previous posts regarding U.S. v. Velez are here and here.
We discussed U.S. v. Kaley, another case involving the payment of legal fees to criminal defense lawyers, here in September.

On September 15, the Eleventh Circuit Court of Appeals, which sits here in Atlanta, Georgia, decided a federal drug and firearm case, U.S. v. Segarra. Drug laws and the gun statute 18 U.S.C. § 924(c) each carry heavy mandatory minimum sentences. The drug minimums are often longer than the minimum called for by § 924(c). In Segarra the Eleventh Circuit was confronted with what is called the “except” clause in § 924(c). Despite the language in this clause, the Eleventh Circuit ruled for the government, and said that the drug and § 924(c) minimum sentences must run consecutively with one another, instead of having the shorter gun sentence run concurrently with the drug penalty.

Mr. Segarra pleaded guilty to possession with intent to distribute crack, as well as possession of a firearm in furtherance of a drug-trafficking offense, in violation of § 924(c). Generally, § 924(c) provides for a minimum sentence of five years for possession of a gun during any crime of violence or drug trafficking crime, in addition to the punishment for the underlying crime. However, the section begins with the following exception: “Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law…”

Mr. Segarra, who was sentenced to the minimum sentence of ten years for his drug crime and an additional five years for the firearm, argued on appeal that his five-year minimum consecutive sentence for the firearm was prohibited by the “except” clause because the underlying offense carried a greater mandatory minimum. The Second Circuit Court of Appeals followed this interpretation in U.S. v. Williams, reasoning that the plain language of the statute forbids the mandatory minimum for the firearm from applying where another provision of law requires a higher minimum sentence.

The Eleventh Circuit, and other circuits which have addressed the issue, rejected the literal meaning of the “except” clause. Yet, the Eleventh Circuit purported to rely on the plain meaning of the statute. The Court looked to § 924(c)(1)(D)(ii), which adds, “no term of imprisonment… under this subsection shall run concurrently with any other term of imprisonment imposed….” The Court said, “To read the statute as the Second Circuit did would ignore § 924(c)(1)(D)(ii).” However, the Second Circuit explicitly addressed that part of the statute in Williams, explaining that reading the “except” clause literally would prevent § 924(c) from being imposed at all, so there would be no concurrent sentences. Even if § 924(c)(1)(D)(ii) creates an ambiguity with regard to the “except” clause, that ambiguity must be resolved in favor of the criminal defendant.

We are disappointed that the Eleventh Circuit did not follow the interpretation of the Second Circuit and we hope that the Supreme Court will consider this issue and resolve the circuit court split in favor of defendants.

The Second Circuit’s opinion in Williams is available here.
The Eleventh Circuit’s opinion in Segarra is available here.

Last week, the Eleventh Circuit Court of Appeals decided United States v. McIntosh, a federal criminal double jeopardy case. The Eleventh Circuit is located here in Atlanta and hears appeals in federal cases from Alabama, Florida, and Georgia. The Double Jeopardy Clause has been whittled down, but this case shows that there are still some circumstances in which the Eleventh Circuit recognizes its necessity.

In McIntosh, the defendant was indicted on drug and firearm charges and pleaded guilty to those charges. Before his sentencing, the prosecutor realized that the offense date in the original indictment was wrong, so he filed a second indictment, identical to the first, with the exception of only the corrected date, and a motion to dismiss the first indictment, which the court granted. McIntosh moved to dismiss the second indictment as barred by the Double Jeopardy Clause, but the court denied the motion. McIntosh then conditionally pleaded guilty to the second indictment, reserving his right to challenge the denial of his motion to dismiss.

The Eleventh Circuit held that jeopardy attached when McIntosh pleaded guilty to the first indictment, so the later indictment for the same offenses violated the Double Jeopardy Clause. The Court vacated his (second) conviction and remanded to the district court with instructions to dismiss the second indictment.

It wasn’t all victory for the defense, though. In its opinion, the Court discussed that the flaw in the original indictment was not fatal, but, at most, procedural. The district court had concluded that the dismissal of that indictment “effectively withdrew McIntosh’s guilty plea,” but the Eleventh Circuit pointed out that the district court had not vacated the conviction or set aside the guilty plea, so the “conviction still exists and awaits a sentence.”

The Court’s opinion is available here.

A new federal criminal law directed at online pharmacies went into effect in April. The lawyers at Kish & Lietz have represented many targets and potential targets of investigations and prosecutions involving these types of online pharmacies, as well as other drug prosecutions. Recent Internet drug sale laws may encompass more behavior than the primary reasons for their enactment.

The Ryan Haight Online Pharmacy Consumer Protection Act makes it illegal to distribute controlled substances that are prescription drugs over the Internet without a valid prescription or to advertise for such distribution. “Valid prescription” is defined as “a prescription that is issued for a legitimate medical purpose in the usual course of professional practice” by a practitioner who has evaluated the patient in person at least once or, if that practitioner is unavailable and has evaluated the patient in-person within the past year, then a practitioner whom he requests to evaluate the patient. The Act also permits states to sue online pharmacies and imposes registration and reporting requirements on certain online pharmacies.

The primary function of the Act is to address online pharmacies, which deliver controlled substances by means of the Internet. Its chief provisions amend 21 U.S.C. Section 841, a part of the Controlled Substances Act that lists illegal conduct and penalties. The new law is targeted at people and entities such as doctors, pharmacists and pharmacies, and web site owners involved with online pharmacies that issue and fill prescriptions for controlled substances based solely on completion of online medical questionnaires. It is not expressly limited to online pharmacies, however, or to the types of targets listed. Federal prosecutors may use this law against anyone who delivers, distributes, or dispenses a controlled substance by means of the Internet, or helps someone do so, without authorization.

Related to this new law, in 2006 the Adam Walsh Child Protection and Safety Act (other aspects of which we discussed in this previous post) created a separate federal criminal law prohibiting Internet sales of certain so-called date rape drugs. One section of the Act amended Section 841 to impose a maximum sentence of twenty years on anyone who knowingly uses the Internet to distribute a date rape drug, knowing or with reasonable cause to believe that the recipient is not an authorized purchaser or the drug will be used in the commission of criminal sexual conduct. The Act defines “date rape drug” to include gamma hydroxybutyric acid (GHB) and its analogues, including gamma butyrolactone (GBL) and 1,4-butanediol (1,4 BD,) as well as flunitrazepam (Rohypnol or roofies) and ketamine. These drugs are also often used recreationally, but the intended use is irrelevant to the law if the person distributing the drugs through use of the Internet knows or has reasonable cause to believe the recipient is not an authorized purchaser.

In addition to these laws punishing behavior broader than their purposes, there appears to be a statutory inconsistency between the Act’s suggestion that GBL and 1,4 BD are ‘analogues’ of GHB and the definition of “controlled substance analogue” set forth in 21 U.S.C. Section 802(32). Under that section, to prove that any particular substance is an analogue to GHB, the Government must prove, among other things, that the substance at issue is “substantially similar” in chemical structure to GHB. Based on what our firm has learned from handling cases involving these substances, it appears that a scientific consensus does not exist on the question of whether GHB is substantially similar in chemical structure to GBL and 1,4 BD. It will be interesting to follow this Act and the manner in which federal courts interpret these seemingly inconsistent provisions. As Internet crimes evolve, we will continue to monitor developments in the law.

The text of the Ryan Haight Online Pharmacy Consumer Protection Act is available here.
The text of the Adam Walsh Child Protection and Safety Act is available here.
21 U.S.C. Section 841 is available here and 21 U.S.C. Section 802 is available here.

A couple of weeks ago, the federal Supreme Court decided a criminal case, Melendez-Diaz v. Massachusetts, holding that the admission of crime lab reports requires the forensic analysts to testify in person. The Georgia Supreme Court adopted the same rule in 1996 for state criminal cases brought here in Georgia and we are pleased that it will now apply in federal criminal cases, as well as in other states that didn’t previously have the rule.

Justice Scalia, a strong defender of the Sixth Amendment Confrontation Clause, wrote the majority opinion in Melendez-Diaz. The basic idea of the Confrontation Clause is that people have the right to be confronted with witnesses against them so they have a chance to defend themselves against the charges. In Crawford v. Washington, the Court held that testimonial statements against a defendant are inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant has had a prior opportunity for cross-examination. In this case, Scalia explained that the crime lab reports were affidavits, which fall within the “core class of testimonial statements” covered by the Confrontation Clause and addressed in Crawford. For that reason, the analysts making the statements must appear at trial.

The dissent argued that forensic evidence is uniquely reliable compared to other types of testimony and that cross-examination of the analysts would be empty formalism. To most people who watch TV shows like CSI, this argument has merit – scientific evidence seems indisputable. But not all forensic analysts are as intelligent and well-educated as Gil Grissom. The Court noted that “[s]erious deficiencies have been found in the forensic evidence used in criminal trials… One study of cases in which exonerating evidence resulted in the overturning of criminal convictions concluded that invalid forensic testimony contributed to the convictions in 60% of the cases.” Confrontation will help assure accurate forensic analysis by weeding out both fraudulent and incompetent analysts.

The opinion in Melendez-Diaz is available here.

Last Monday, the Supreme Court granted certiorari in a related case, Briscoe v. Virginia. We will follow that case and update on it when it is decided. More information on that case can be found at the Confrontation Blog.

Last Tuesday, in Abuelhawa v. United States, the Supreme Court ruled that using a cell phone to make a misdemeanor purchase of drugs does not “facilitate” a felony drug distribution crime. The government charged Mr. Abuelhawa with six felony charges, one for each cell phone call, for facilitating the sale of drugs, although his two, first-time, small cocaine purchases qualified only as misdemeanors. Those charges resulted in a potential sentence of 24 years in federal prison, compared with a potential two-year sentence for two misdemeanors. Just for using a cell phone.

The government argued that Abuelhawa’s use of a phone to buy cocaine counted as “facilitation” because it made the drug dealer’s sale easier, hence violating a section of the Controlled Substances Act that makes it a felony “to use any communication facility in committing or in causing or facilitating” felony drug distribution. While at first glance, the common meaning of “facilitate” may give this impression, the result is absolutely absurd. And, as the Court points out, in any sale, the two parties have specific roles and “it would be odd to speak of one party as facilitating the conduct of the other.”

Justice Souter, in his opinion for the unanimous Court, was diplomatic in his criticism of the government’s inane argument. He called it “improbable” and “just too unlikely” because it “comes up short” and “does not follow.” The Court reasoned that the distinction Congress made in the Controlled Substances Act between distribution (a felony) and simple possession (a misdemeanor) makes it “impossible to believe that Congress intended ‘facilitating’ to cause that twelve-fold quantum leap in punishment for simple drug possessors.”

While we are still disappointed with the Court’s other criminal law decision last Tuesday, we at least take solace in that they recognized blatant government overreaching in this case.

Here in Atlanta, we have been involved in many criminal cases in which police arrested people for traffic offenses, then searched their vehicles and found evidence of completely unrelated crimes. The search incident to arrest rule has been unfairly used by police as an investigatory tool since New York v. Belton extended the rule in Chimel v. California to automobiles in 1981. Last Tuesday, the United States Supreme Court, in Arizona v. Gant, limited this rule to constitutional bounds. Dividing down unusual lines, the Court formulated a new rule that is more in keeping with the original rationale for Chimel and Belton. The rule will apply in both federal and state cases.

Chimel was decided in 1969, holding that police may search the space within an arrestee’s immediate control, “from which he might gain possession of a weapon or destructible evidence.” Belton extended the rule to vehicle searches, but has unfortunately been widely understood to permit vehicle searches even where the arrestee could not gain access to a weapon or evidence. Police have been trained to secure arrestees, then routinely search everything within the passenger compartment of the car. Though these searches have no officer safety or preservation of evidence justification, the police have on occasion acted as if the Belton rule gave them the right to search wherever and whenever they wanted to do so.

In last week’s case, Mr. Gant happened to be at a house that police thought may contain drugs, based only on an anonymous tip. With no probable cause to search Gant or the house for drugs, the officers later arrested Gant after he drove into the driveway, on a warrant for driving with a suspended license. After Gant had been handcuffed and placed in the back of a patrol car, officers searched his vehicle and found a gun and a bag of cocaine. When asked under oath why they performed the search, one of the officers responded, “Because the law says we can do it.”

A chorus of scholars, courts, and Supreme Court justices has called for the Court to revisit Belton, questioning its fidelity to the Fourth Amendment and its clarity. The majority in Gant finally rejected the overbroad reading of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court further held that a search might be justified when it is reasonable to believe that evidence related to the crime for which the person is arrested may be found in the vehicle.

Justice Alito wrote the dissenting opinion in this case and was joined by Chief Justice Roberts, Justice Kennedy, and, in part, Justice Breyer, who disagreed with Alito that Belton was well-reasoned. The dissent focused on stare decisis, insisting that the majority was over-ruling Belton, without properly addressing the abandonment of prior precedent. Justice Stevens, writing for the majority, and Justice Scalia, in a concurring opinion, stressed that stare decisis does not justify unconstitutional results.

We are relieved that the court finally limited this rule, which police have taken advantage of for nearly thirty years to invade citizens’ privacy and conduct searches without probable cause. However, we take issue with the second part of the rule, permitting a vehicle search incident to arrest when officers have “reason to believe” they might find evidence related to the crime of arrest. The Court does not address why it chose this standard, rather than probable cause. This part of the rule will create confusion and could tempt officers to fabricate potential crimes in order to search the car in hopes of finding evidence.

Demarick Hunter is serving a sentence of 15 years and 8 months in federal prison for possessing a firearm. The Armed Career Criminal Act (ACCA) provides for a minimum sentence of 15 years for career criminals who carry firearms. Mr. Hunter’s prior convictions do not qualify him as a career criminal under the ACCA. The Eleventh Circuit acknowledged that he is serving an illegal sentence, but refused to allow him to appeal it.

The ACCA applies to people with at least 3 prior convictions for violent felonies or drug offenses. Mr. Hunter was sentenced as a career criminal under this act because in addition to one conviction for a drug offense, his two prior convictions for carrying a concealed weapon were considered violent felonies. Last year the Eleventh Circuit acknowledged that carrying a concealed weapon may not be a violent felony. In the Hunter case last month, the Eleventh Circuit agreed that Hunter was erroneously sentenced, but denied his request for a certificate of appealability because “a sentencing error alone does not amount to a substantial showing of the denial of a constitutional right.” The miscarriage of justice in this decision for Mr. Hunter is maddening in and of itself.

However, there is an even more infuriating aspect to this decision. The Court notes at the end of this decision that Mr. Hunter can’t show ineffective assistance of counsel because his lawyers didn’t argue at sentencing or direct appeal that carrying a concealed weapon was not a violent felony under the ACCA. Most lawyers wouldn’t have done so. At the time of Mr. Hunter’s sentencing and direct appeal, binding case law held that carrying a concealed weapon was a violent felony.

The reason this is so galling is that Mr. Hunter’s lawyers, like many attorneys, presumably did not challenge this law because judges often get upset with lawyers for raising challenges that are contrary to established precedent. Judges think lawyers are being unprofessional when they raise such challenges. Down the road, though, when the law finally turns in the favor of defendants, they suffer the consequences. Had Mr. Hunter’s attorneys raised this argument at sentencing and on appeal, the outcome of this case would have been quite different.

Lawyers must not be afraid of upsetting trial judges by challenging bad law. We must be willing at the trial and appellate level to raise challenges that may fly in the face of existing precedent. The Hunter case reminds us yet again of why we fight with such resolve.

The opinion in the Hunter case can be found here.

An article in yesterday's New York Times examines federal drug sentences as part of the overall picture which shows that the U.S. leads the world in the number of people incarcerated, as well as in the length of those sentences. Part of the article looks at statistics showing how federal criminal sentences have exploded in the past two decades. Around 1980 there were 40,000 people serving time for federal crimes. That figure has expanded to almost 500,000 federal prisoners at the present time. The article points out that more than half of the people doing federal time were convicted of drug crimes. Here is a little background on how this amazing expansion of federal drug prisoners came to be.

When I was just out of law school in the early 1980's, I worked for a couple of federal judges as a law clerk. It's a great job where recent students help the judge and also get to see the legal system up close and in action. I always watched the criminal trials with interest. The drug cases tended to be prosecutions of large-scale dealers, importers and middle men. Cocaine seemed to be the drug that federal prosecutors focused upon.

I remember one case involving a pretty big dealer where the judge for whom I worked imposed what I thought was a rather harsh sentence, 15 years in prison. Later, the judge laughed when he explained that the guy would be out in under 5 years, maybe less. The reason was the old parole system used by the feds really only required the person to do about one-third of the actual sentence.

By the middle of the 1980's, Congress and the Reagan Administration were going full bore in their oddly misnamed "War on Drugs." Congress created mandatory minimum sentences, and in 1984, the extremely unfortunate Federal Sentencing Guidelines. Furthermore, the Reagan Administration convinced Congress to fund huge increases for the DEA and the Department of Justice. All those new DEA agents and young prosecutors needed to do something to justify their salaries, so lo and behold, the number of drug prosecutions shot skyward. However, going after drug kingpins is long and laborious work. By the 1990's, we were mostly seeing street-level dealers getting prosecuted in federal court. Only rarely have I seen a really big federal drug case in the past 15 years or so.

However, while the dealers are smaller, the sentences are now much longer. The mandatory minimum sentences, along with the ridiculous 100:1 ratio of punishments for crack versus powder cocaine, resulted in amazingly unjust sentences. Remember the 15 to serve 5 sentence imposed by my old judge on the high-level dealer? Nowadays, the kid who makes a couple of hundred dollars a week selling will get 10 years to serve, with no parole and no hope of early release (except for a little off for good behavior.) Other sentences likewise are far longer. I had a case a couple of years ago where my client had two prior drug convictions. This man was an addict, and a young drug dealer convinced the addict to carry a two ounce package across the street. The combination of the mandatory minimums along with some amazingly harsh rules for repeat offenders meant that this man was required to serve 30 years! And this for a low-level addict merely carrying the drugs in the hope of earning a small hit to fee his habit!

Our nation now incarcerates more people for drug crimes than any other country on earth. This has been an amazing waste of time, money, and most importantly, human lives. Lawyers who recognize how we came to this point in our nation's history need to tell the sad story of how all this came about. Only when the people realize how unproductive this all is can we hope to bring some sanity back to this aspect of our criminal justice system.

Sentences in federal court for crack cocaine offenses will be reduced for many people, based on an amendment issued by the United States Sentencing Commission on December 11, 2007. This is good news for defendants who have been forced to spend longer in prison than similary situated defendants who were convicted of powder cocaine violations.

As I wrote about recently, crack cocaine is punished 100 times more severely than powder cocaine. Virtually all crack cocaine defendants are non-white, while at the same time people of all colors are prosecuted under the less stringent powder cocaine rules. For years, scientists and criminal defense attorneys have been arguing that this difference makes no sense, is unfair, and promotes widespread disrespect for the law.

The Sentencing Commission finally saw things our way, and agreed that the 100-1 ratio is unfair and makes no sense. For years now, the Commisson has been asking Congress to do something, but our elected lawmakers have failed to act. Earlier this year, the Commission published new rules designed to help this situation a little bit. After a six month period during which Congress could have squashed the changes, the new rules went into effect. Even more importantly, the December 11 amendment made these changes retroactive, which is a fancy way of saying the new rules apply to people who have already been sentenced. In other words, if you or a loved one was sentenced even many years ago, there is a chance that sentence can be reduced.

The Sentencing Commission says that the retroactivity rule will not go into effect until March 3, 2008, so it does no good to ask a judge for anything until that date. However, for those who may be affected, it makes sense to get ready and try to get to the head of the line. At our law firm, Kish & Lietz, we will be glad to talk with you about whether we can assist your loved one in getting a reduced sentence.

Federal sentences for crack cocaine crimes are grossly unfair. For almost two decades, many people have been fighting against a system in which a person with crack cocaine is punished 100 times more severely than a similarly situated offender who happens to have a powder version of this drug. Although there are a series of recent developments that show promise for remedying this gross disparity, I still wonder if the legislature or the courts will ever show the courage to do the right thing.

A bit of history first. Cocaine dealers have been prosecuted in the federal courts for many years. In the early and mid-1980's, drug dealers and users discovered that by "freebasing" the drug, the user got a much more intense "high." Many of us of a certain age remember that the amazingly funny Richard Pryor almost killed himself using this method. Later, the dealers took this method to the next level, resulting in a solid version of the drug which came out in cookie form. The dealers would have to crack off a piece from the cookie every time they wanted to sell some, hence the term "crack." By the mid-1980's, crack was taking over, and resulted in a lot more violent crime in the drug trade. The publicity came to its high point when college basketball sensation Len Bias died from an overdose of crack cocaine the dayy after the Boston Celtics made him their number one pick in the draft. Shortly thereafter, Congress enacted a series of mandatory minimum penalties for federal drug crimes, and among these laws were rules that punished crack cocaine violators 100 times more harshly than persons who were involved with a powder version of the crime.

When prosecutors began using these new penalties, it became clear that only black people were getting charged with crack cocaine penalties, while powder cocaine penalties were imposed on both black and white offenders. Myself and other lawyers began mounting challenges against these unfairly disparate laws. I remember going to a seminar when we were trying to figure out how to raise challenges, and we listened to a famous pharmacologist who gave us a lesson on the chemistry of cocaine and how cocaine acts on the human body. I asked the scientist how crack differs from powder cocaine when it affects the human body, and was amazed when he said there is no difference!

Time went on, we lawyers raised challenges, and the courts continually turned a deaf ear. In one case, the public defenders convinced the courts to dismiss the charges because the federal prosecutors refused to provide information about why the vast majority of crack cocaine prosecutions involved black people, but the Supreme Court ruled that the case should continue and the prosecutors did not have to explain this ridiculous diffference.

We now are finally seeing some progress. The United States Sentencing Commission has proposed rules to rectify this disparity. However, these changes won't affect the basic problem of the mandatory minimum sentencing scheme enacted way back after basketball player Len Bias died. Sentencing judges have been occassionally trying to rectify the problem by using a "downward departure" or a "variance". The Supreme Court recently heard arguments about this, and how it will turn out is anyone's guess. No matter what happens, thousands of defendants and their families have had their lives wrecked by an unfair set of laws enacted in the midst of the media-created drug hysteria of the mid-1980's. I cringe every time I remember trying to explain to the family of a young man how he was required to go to federal prison for ten years on his first offense just because he helped carry an ounce of crack cocaine from one place to another. I can only pray that this two decades of unfairness has not completely turned those clients and their families against our criminal justice system.

Drug crimes in federal court involving young people are unfortunately too common. However, most young people, and many of their parents, do not realize how the harsh sentencing schemes in federal court can have a severe impact on what appears on the surface to be merely a youthful indiscretion.

I have several current clients who come from very nice families, young people whose lives can be impacted severely because of some stupid involvement in drug crimes. The reason that these crimes can have severe impacts are the set of mandatory minimum sentencing schemes enacted by Congress back in the 1980's. These harsh sentencing laws can result in 5 or 10 year minimum sentences, even for some of those least involved in a drug crime. A good example on how even the least involved person can get caught up in these harsh mandatory sentences is an appeal we won for a client several years back.

These mandatory sentences can be amazingly harsh, especially for anyone foolish enough to deal in either crack cocaine or LSD. Small amounts of either substance can yield 5 or 10 years in a federal prison, with absolutely no hope of parole. What makes it even more absurd is that the sentence depends on the weight of the "mixture of substance" that contains even a "detectable amount" of the drug. The Supreme Court has had held that the blotter paper on which some foolish young person drips the drug is included in the weight. Many families have been so incensed about these ridiculous sentencing schemes that they have bonded together in the Families Against Mandatory Minimums lobbying group.

Many parents and young people are also shocked when they realize that there is no "first offender" or records expungement procedure in federal court. In other words, young people caught up in a federal drug case can be stuck with the stigma of a criminal conviction for the rest of their lives.

We have been able to help a few young people in these situations. Obviously, the most important thing anyone can do when they know a young person caught up in a federal drug investigation is to contact an experienced federal criminal defense attorney.