Category: Sentencing

Final Orders List

by · Jul 2, 2024 8:38 am

The U.S. Supreme Court issued the last regular orders list of the term today. The court took up two cases on resentencing under First Step Act (which should have been titled the False Step Act or perhaps the Misstep Act). If a federal criminal sentenced before the Act gets a resentencing for some reason, does he get the benefit of the Act’s softer sentencing?

There will be a few orders lists during the summer recess, but they will likely be procedural matters, not decisions on whether to take up a new case.

Continue reading . . .

Jury Trial and Crimes on Different Occasions

by · Jun 21, 2024 1:53 pm

Today the Supreme Court decided the latest installment in the continuing saga of jury trial on sentence-determining facts. The case is Erlinger v. United States, No. 23-370.

The Armed Career Criminal Act provides for an enhanced sentence for violators with three prior violent felony convictions of crimes “committed on occasions different from one another.” So who decides if the occasions are different? No one who has followed the Apprendi line of cases will be surprised to learn that the Court held that the right of jury trial extends to this determination.

On the facts of the case, the “different occasions” element is so obvious that a jury would be able to decide it without even sitting down, yet the case goes back to convene a jury for this purpose, unless this can be considered a “harmless error.” Continue reading . . .

Released Robber Robs Again the Next Day

by · Jun 18, 2024 10:53 am

On May 7, convicted robber Eric Gray was released from San Quentin. The next day he robbed a bank in Orange County, California and held three employees prisoner. He presently faces charges in federal court. The Orange County Register has this article.

The federal complaint states that “Gray has a lengthy criminal history that includes, but is not limited to, grand theft auto, robbery, sexual battery, and narcotics-related offenses. Continue reading . . .

Is Murder a Violent Offense?

by · Jun 3, 2024 2:33 pm

To anyone with common sense, the title of this post seems to be a contender for the most absurd question that can possibly be asked. Yet, believe it or not, the U. S. Supreme Court today took up a case that asks that question, Delligatti v. United States, No. 23-825.

According to the government brief on the question of whether to take the case up, defendant Salvatore Delligatti was “an associate in the Genovese Crime Family,” who was hired to murder someone and then subcontracted the job. The plot failed when the police were alerted and arrested the subs. Among other crimes, Delligatti was charged with gang-related attempted murder in violation of the Violent Crimes in Aid of Racketeering Act, 18 U.S.C. § 1959, and “carrying a firearm during and in relation to any crime of violence,” 18 U.S.C. § 924(c)(1)(A).

Delligatti was convicted on all counts and sentenced to 25 years in prison, of which 5 years were for the § 924 gun charge. He argued in the trial court and on appeal that murder as defined in New York is not a “crime of violence” within the definition of § 924(c) because that definition requires physical force, and it is possible to commit murder in New York by failure to act when one has a duty to act, which does not involve physical force. Continue reading . . .

Unconnected Mitigation Evidence in Capital Cases

by · May 30, 2024 4:35 pm

Today the U.S. Supreme Court reversed a decision of the Ninth Circuit in a capital case, Thornell v. Jones. All but one of the Justices agreed that the panel decision was wrong. The Ninth Circuit itself refused to rehear this rogue decision over the dissents of ten of its judges. This is such a common occurrence it is hardly even news. The most newsworthy aspect of the case is that a solid majority of the Supreme Court is finally showing skepticism about the value of “background” mitigating evidence that has nothing to do with the crime. This is a most welcome development, even if over 40 years late.

Claims of ineffective assistance of counsel are the weapon of choice for capital defense lawyers who want to retry their state-court cases in federal court. The most common line of attack is to find something about the defendant’s background that the trial lawyer did not present, proclaim it to be critical evidence that would have turned the whole case around, and denounce the trial lawyer as incompetent because he did not present it. The evidence need not have any substantial weight if the murderer wins the judge selection lottery and draws judges who approach every capital case as an exercise in searching for an excuse to overturn the sentence. Continue reading . . .

SCOTUS Unties ACCA Hemp Knot

by · May 23, 2024 11:19 am

In the Armed Career Criminal Act (ACCA), Congress prescribed severe punishment for people with extensive criminal records who violate federal gun laws. The priors are generally state offenses, so there is a problem matching up criminal laws from different jurisdictions. Under the “categorical” approach the Supreme Court has developed, mismatches often spring loose criminals whose actual conduct meets the definition of the crime that Congress sought to include, frustrating the intent of the law. The Supreme Court has had to decide many cases on this topic, and today’s decision in Brown v. United States is the latest installment.

This decision involves two cases, one from Florida and one from Pennsylvania. In both cases, the drug dealers in question dealt in drugs that remain illegal under federal law. Between the times of their state drug-dealing crimes and their federal weapons sentencing, though, the federal government narrowed its definitions of controlled substances so that the state and federal laws were no longer a perfect match. Should that get them off? Three justices voted for that undeserved escape on a technicality, but the majority of six did not. Continue reading . . .

Supreme Court Copes with Sloppy Drafting in the First Step Act

by · Mar 15, 2024 2:50 pm

In 2018, Congress passed the First Step Act to water down federal sentencing law. I was critical of many provisions of the act at the time, see here, here, and here, though I did agree that some sentences were too harsh and could use a bit of moderation. Mandatory minimums were particularly under assault. I believe they serve a useful function, but some were overboard.

The previous version of 18 U.S.C. § 3553(f) had a safety valve allowing judges to let a defendant off from an otherwise mandatory minimum for certain drug crimes if all five of its listed requirements were met. The criminal history requirement was very narrow, and there is no doubt that the 2018 Congress wanted to open the door wider. But how wide? Unfortunately, the drafting of this section was sloppy, and today the Supreme Court disagreed sharply on how to read it. The case is Pulsifer v. United States. Continue reading . . .

Deja Vu All Over Again

by · Mar 13, 2024 2:22 pm

A March 4 article by By Paul Demko, Jeremy White and Jason Befferman published in POLITICO reports that liberal Democrat politicians in some of the nation’s most progressive cities are abandoning the soft-on-crime policies that they vigorously supported a few years ago. Back in 2020, as the George Floyd riots were tearing up these same cities, politicians running New York, Washington DC, Chicago, Baltimore, Seattle, Portland, Los Angeles and San Francisco were insisting that sentences for so-called “low level” drug and theft related crimes be reduced, that cash bail be eliminated and that criminals, including violent gang members, be released early to rehabilitation programs. The motivator for these policies was the systemic racism narrative promoted by progressive academics, non-profits like Black Lives Matter, race-baiting politicians and the national media. While this narrative had been pushed since the 1990s, it got major traction after Floyd’s death as deep blue cities reflexively cut police budgets, elected pro-defendant prosecutors and swept away consequences for crime. Then something happened.

Continue reading . . .

Cal. Supreme Ct. Upholds Life-Without-Parole for Young Adult Murderers

by · Mar 5, 2024 4:28 pm

A California law, enacted directly by the people, provides that the crime of first-degree murder with special circumstanhe ces committed by an adult is punishable by death or life in prison with no possibility of parole. Yet Tony Hardin, who committed a vicious murder at age 25, claimed that the Equal Protection Clause of the Fourteenth Amendment requires that he be considered for parole anyway because others who committed lesser degrees of murder at the same age are eligible for “youth offender parole” under California law. A California Court of Appeal panel actually bought that. The California Supreme Court rejected this claim in a 5-2 decision yesterday, reversing the Court of Appeal. Continue reading . . .

Coalition Grows to Overhaul California’s Thief-Friendly Law

by · Feb 9, 2024 11:28 am

The San Francisco Chronicle has this article on Mayor London Breed joining the coalition to overhaul California’s disastrous Proposition 47. And of course, being the Chronicle, the main thing they emphasize about the initiative is that it is “GOP-led,” generally regarded as a kiss of death in The City.

But Mayor Breed is not the only Democrat to climb on the fix-47 bandwagon. Continue reading . . .