Case o' The Week: The Real McCoy - Compassionate Release and "Second Look" Sentencing

 “We return to the Second Circuit's description of the First Step Act and its amendment of § 3582(c)(1)(A): an “incremental” change that does not mandate more lenient sentences across the board but instead gives new discretion to the courts to consider leniency.”

  

United States v. McCoy, 981 F.3d 271 (4th Cir. 2020), decision available here.

 [Ed. Note: A slow spell in the Ninth lets us flag an important – and time-sensitive – recent Compassionate Release case out of the Fourth Circuit].

Players: Decision by Judge Harris, joined by Judges Diaz and Thacker.

Big win for AFPDs Paresh Patel and Shari Silver Darrow, District of Maryland Office of the Federal Public Defender.   

Facts: These appeals were from Compassionate Release grants for defendants convicted of “stacked” § 924(c) charges. Id. at 274. Their sentences ranged from 35 to 53 years. Id. Because of the First Step Act, if sentenced today the terms for these defenders would be 30 years less. Id.

  After the defendants’ Compassionate Release motions were denied by the BOP, counsel litigated for reductions in the district court. Id. at 277.

  The lead appellee, McCoy, was nineteen when he received a 35 year sentence. Id. McCoy had served seventeen years when the district court granted his C/R motion and reduced his sentence to time served. Id. The Fourth consolidated several government appeals of these resentencing decisions.

Issue(s): “[T]he government presents two primary arguments . . . . First, the government contends that treating a disproportionately long sentence as an ‘extraordinary and compelling’ reason for a potential sentence reduction is not ‘consistent with applicable policy statements issued by the Sentencing Commission,’ as required by § 3582(c)(1)(A).” Id. at 280.

  “And second, the government argues, even if consideration of the defendants’ § 924(c) sentences were not precluded by § 1B1.13, the First Step Act's elimination of sentence-stacking still could not constitute an ‘extraordinary and compelling reason’ for compassionate release . . . .” Id.

Held: Issue One: “[W]e agree with the Second Circuit and the emerging consensus in the district courts: There is as of now no ‘applicable’ policy statement governing compassionate release motions filed by defendants under the recently amended § 3582(c)(1)(A), and as a result, district courts are empowered . . . to consider any extraordinary and compelling reason for release that a defendant might raise.” Id. at 285 (internal quotations and citation omitted).

  Issue Two: “[W]e find that the district courts permissibly treated as ‘extraordinary and compelling reasons’ for compassionate release the severity of the defendants’ § 924(c) sentences and the extent of the disparity between the defendants’ sentences and those provided for under the First Step Act. We emphasize, as did the district courts, that these judgments were the product of individualized assessments of each defendant’s sentence. And we note that in granting compassionate release, the district courts relied not only on the defendants’ § 924(c) sentences but on full consideration of the defendants’ individual circumstances . . . .” Id. at 286.

Of Note: Critical to this great outcome is dusty guideline § 1B1.13, that predated the First Step Act. Short of a quorum, the Sentencing Guideline Commission has been unable to update this guideline and thus slam the door on this opportunity. See id. at 282 & n.6.

When the Commission does get a forum, will its skepticism of Compassionate Release change?  Who knows – but why risk it? This window of opportunity may not last forever: the time for these “Second Look” motions is now.

How to Use: Stacked § 924(c)s are great candidates for these motions. So are drug cases with changed mand mins.

For a great holiday example, check out United States v. Blanco, CR 93-20042 CW (N.D. Cal. Dec. 14, 2020), Ord., Dkt. 2784. 

In Blanco, ND Cal FPD Appellate Chief Carmen Smarandoiu brought a Compassionate Release motion to earn a resentencing on a life mand-min drug case. The resentencing result? Time served after twenty-five years in, and a “lifer” home for Christmas!                                           

For Further Reading: Like the A.G. slot, President Biden has been mum thus far on his potential Sentencing Commission nominees.

  How about another shot for a great President Obama nominee, whose nomination expired with the 114th Congress? See Press Release here.  

 

Image of “The Real McCoy” from https://blog.kiddom.co/the-real-mccoy/

 

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

 

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Case o' The Week: Pro Se, A-Ok -- Engel and Parameters of Pro Se Representation

  Engel’s dialectic?

Mr. Todd Engel

“Tame.” 

United States v. Engel, 2020 WL 4519071 (9th Cir. Aug. 6, 2020), decision available here.

Players: Decision by Judge Bybee, joined by Judges W. Fletcher and Watford.  

Facts: Todd Engel traveled from Idaho to Nevada to impede a Bureau of Land Management (BLM) operation, related to the Bundy confrontation. See generally case description at blog on Bundy, here. Id. at *1. Wearing combat gear and armed with an AR-15, Engel stood on a bridge overlooking the BLM’s position. Id. No shots were ever fired. 

  He was charged with obstruction of justice and interstate travel in aid of extortion. A trial Engel successfully moved to represent himself and was appointed standby counsel. Id. at *2.

 Twenty-one days into the trial, Engel attempted to solicit from a government witness on cross that Special Agent Dan Love had been the subject of an investigation. Id. at *2. The court had previously rejected defense efforts to call Agent Love. Id. The district court sustained the government objection: Engel calmly apologized. Id.

   The government then moved for Engel’s pro se status to be revoked. The court, finding Engel was “smug” and “very proud of himself” for “sliding in” the question, agreed, revoked pro se status, and standby counsel came in. Id. Engel was convicted and sentenced to 168 months. Id. at *3.

Issue(s): “[Engel] contends that the district court violated the Sixth Amendment during his trial when the court terminated his right to represent himself and appointed standby counsel to represent him instead.” Id. at *1.

Held: “When viewed in comparison to these cases, the facts here do not support the district court’s termination of Engel’s right to represent himself. Unlike the defendants in [United States v. Mack, 362 F.3d 597, 599 (9th Cir. 2004) and Badger v. Cardwell, 587 F.2d 968, 971–73 (9th Cir. 1978)], Engel was not defiant and did not engage in   blatantly outrageous conduct, such as threatening a juror or taunting the district judge. To the contrary, Engel merely asked a question prejudicial to the government. When the government objected, Engel remained calm and ultimately acquiesced in the court’s decision to revoke his right to self-representation.” Id. at *4. 

 “We hold that Engel’s conduct was not sufficiently disruptive to justify termination of his right to self-representation. Because this is a structural error, we vacate Engel’s conviction and remand for a new trial.” Id. at *1.

Of Note: What is the standard of review, when a defendant claims on appeal that his Sixth Amendment right to self-representation was violated? There’s a split: five circuits have held it is de novo review, while the Seventh has held the issue is reviewed for abuse-of-discretion. Id. at *3.

  Judge Bybee explains that the Ninth Circuit hasn’t yet decided the S.O.R., and “[b]ecause we think the result in this case is the same under either standard, we need not resolve this split in authority.” Id. at *3.

  Note this issue for future Sixth Amendment / pro se cases: the standard of review remains up for grabs in the Ninth.

How to Use: How disruptive must a pro se defendant be, to have self-representation yanked? Judge Bybee works through a set of fact patterns where the Ninth upheld the court’s pull of pro se status: heated discussions with the judge, threats to a juror, and specific violations of a court order. Id. at *4. This same discussion reports conduct that is not enough: nonsensical pleadings, occasionally uncooperative, wearing prison garb in front of the jury, and lack of familiarity with the rules. Id. By comparison to these cases, Engel’s conduct in this trial was “tame.” Id. at *5. When dealing with a pro se client, Engel is a useful catalog of the conduct that crosses the line and can bump you from standby counsel to trial counsel.                                              

For Further Reading: Last week President Trump announced his intent to nominate a five Sentencing Commissioners. See press release here. 

Four of the five nominees are former federal prosecutors, who are on record favoring (significantly) higher custodial sentences. See, e.g., “Hang ‘em High” federal judge makes no apologies, here. 

Will the current Senate get around to confirming this daunting crew? The guideline ranges for our future clients, for many years ahead, hinge on whether these five nominations get crammed through the current Senate before it ends on January 3, 2021.   

 

 

Image of Mr. Engel from https://twitter.com/jjmacnab/status/1020058913113178112 .

 

Image of “Hang ‘em High” movie poster from https://www.vudu.com/content/movies/details/Hang-em-High/140796

 

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

 

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