Leocal & Martinez: an end to BOP misinterpretation of the good time statute?

Inmates in federal prisons around the country have been objecting to the BOP’s claim that the federal good time statute only provides 47 days, not 54 days, of credit against every year of the sentence. Despite statutory language providing up to 54 days of good time credit "beyond time served" at the end of each year of the "term of imprisonment," the BOP only provides maximum good time of 47 credits per year of the sentence. Two district courts have found that the statue unambiguously requires 54 days, but several Circuits – including the Ninth – have found the statute ambiguous, then deferred to the agency’s interpretation that good time only counts against time actually served, not the sentence imposed. This Term’s Supreme Court opinions in Leocal and Martinez demonstrate that the rule of lenity, not Chevron deference, controls the interpretation of this penal statute.

For several years, the National Association of Criminal Defense Lawyers, the Families Against Mandatory Minimums, and the National Association of Federal Defenders have been struggling to provide prisoners the full measure of good time provided by Congress in 18 U.S.C. § 3624(b) (as reflected in the Champion article here). Two terrific district court opinions (White and Williams) follow the simple rules of statutory construction to find that "term of imprisonment" means the sentence imposed, thereby requiring 54 days of good time credit per year. Several Circuits, on the other hand, have generally followed the Ninth Circuit’s lead in Pacheco-Camacho by finding "term of imprisonment" to be ambiguous, then according the BOP Chevron deference (including the Seventh Circuit in reversing White).

Now those Circuit cases need a second look. Recent Supreme Court cases establish that the canons of statutory construction -- like the rule of lenity -- apply before Chevron deference. Because these recent Supreme Court cases undermine the "mode of analysis" of earlier precedent, Pacheco-Camacho and the cases following it must be re-examined under the governing Supreme Court methodology (Miller).

This is how the rules of construction are supposed to operate. In I.N.S. v. St. Cyr, the Court rejected the retroactive construction of a removal statute, because, citing Chevron’s first prong, deference is only appropriate to statutes that, "applying the normal ‘tools of statutory construction,’ are ambiguous." The brain teaser in footnote 45 is the key: "Because a statute that is ambiguous with respect to retroactive application is construed under our precedent to be unambiguously prospective, . . . there is, for Chevron purposes, no ambiguity in such a statute for an agency to resolve." The rule of lenity is also a "tool of statutory construction," rendering penal statutes unambiguous for Chevron purposes.

This Term, the Court followed the St.Cyr reasoning in Leocal v. Ashcroft and Martinez v. Clark. In Leocal, the immigration agency found an alien removable for having committed an aggravated felony because it interpreted drunk driving to be a "crime of violence." In rejecting the agency interpretation, the Court explicitly addressed the rule of lenity. In footnote 8, the Court, citing Thompson/Center, found that any ambiguity would have to be construed in the alien’s favor under the rule of lenity, because the statute had only one meaning in criminal and noncriminal contexts.

In Martinez, the Court again rejected the immigration agency’s construction of a statute, this time the post-removal detention statute, again referring to Thompson/Center. The Court emphasized that the doctrine of constitutional avoidance is a canon of statutory construction. Since the doctrine only applies to ambiguous language, this is another example of how "tools of statutory construction" -- including the rule of lenity -- are applied before the first prong of Chevron’s determination of ambiguity. By applying lenity first in construing the good time statute, the Court avoids the separation of powers issues surrounding the Executive’s usurpation of the Legislative function of setting punishment.

These Supreme Court cases demonstrate that, contrary to the Circuits that have been deferring to the agency based on the good time statute’s supposed ambiguity, the rule of lenity trumps Chevron deference. As Justice Scalia wrote in the concurring opinion in Crandon, the Executive’s construction of a penal statute "is not even deserving of persuasive effect" because it "would turn the normal construction of criminal statutes upside down, replacing the doctrine of lenity with the doctrine of severity." Pacheco-Camacho’s reliance on Sweet Home, a case that did not involve an ambiguous penal statute, is undone: the footnote 18 reference in Sweet Home to Thompson/Center has been adopted by Leocal and Martinez.

These cases mean district courts around the country should be free to decide prisoner petitions unencumbered by the cases that, as the Williams judge stated, give only a "cursory nod" to statutory construction. Lawyers litigating these issues have support from the Oregon FPD and FAMM, through its counsel, Mary Price. The NACDL Website has model pleadings and briefs including the pending Ninth Circuit case of Mujahid (opening and reply briefs), AFPD David Lewis’s development of the Chevron/lenity analysis in the Second Circuit, and AFPD Sarah Gannett’s amicus brief defending the Williams decision in the Fourth Circuit.

Sarah updates what is at stake: for the present prison population, seven days per year would save 27,000 years of incarceration and $620 million of incarceration costs never authorized by Congress. If you are litigating this issue, or want to provide prisoner representation, please contact Lynn Deffebach at the Oregon FPD (lynn_deffebach@fd.gov) or Mary Price at FAMM (mprice@famm.org).

Moreland: road map to good time victory

As previously reported here, the good time issue has been gaining traction. Two district courts (White & Williams) have held that the good time statute unambiguously requires a maximum of 54 days for each year of the sentence imposed, not the 47 days provided by the Bureau of Prisons. And the Supreme Court’s Leocal opinion has undermined the courts that found the good time statute ambiguous, then deferred to the BOP under Chevron, rather than applying the rule of lenity. Now, Magistrate Judge Stephen William Smith provides the most thorough judicial analysis of the good time question to date in his findings and recommendation in Moreland v. Federal Bureau of Prisons. AFPD Brent Newton represents Ms. Moreland who, if she ultimately prevails, could be released four months earlier than her current release date.

The Moreland opinion (available here) begins with the basics: "term of imprisonment" should not be construed to mean different things in the same sentence. Judge Smith rejects the BOP’s insistence that the third use of "term of imprisonment" means "time served" while the first two uses in that sentence mean "sentence imposed": "Sloppy draftsmanship," he writes, "is not difficult to find in the U.S. Code, but the BOP’s interpretation plumbs new depths of linguistic confusion."

Judge Smith then adds depth to previous analyses of the statute, explaining why "at" does not mean "after" in the key phrase "up to 54 days at the end of each year of the prisoner’s term of imprisonment." The BOP has maintained that the phrase supports its interpretation that good time may not be credited for time not yet served. Explaining the "inclusive year" approach, the court concluded that 311 days of actual time served, plus 54 days of good time credit, equals one year of the sentence imposed. "[T]he BOP’s position can fairly be dubbed the ‘Christmas-in-January’ approach to GCT." Describing the BOP’s approach as "linguistically unsound," Judge Smith presents a collection of simple analogies to illustrate why "at" the end of the year cannot mean "after" the end of the year. "King Lear," he reminds us, "dies at the end of the play, not after the play. The fat lady sings at the end of the opera not after it. The two-minute warning occurs at the end of the game..."

Judge Smith carefully reviews the legislative history to reinforce his finding that Congress anticipated good time credit would be applied to the sentence imposed. Repeated references to 15% good time credit, the long history of awarding good time credit against the sentence imposed, and the purpose of simplicity all militate in favor of the prisoner receiving seven more days per year than the BOP gives.

Then on to my favorite part – the use of the rule of lenity to trump Chevron. Judge Smith reviews the "venerable" rule of lenity and its application to sentencing, including citation to Leocal. Although noting the limits to the rule’s application, the court found that this "substantive rule of statutory interpretation" foreclosed use of the BOP’s possible but implausible construction of the statute. "To the extent there remains any ambiguity in the statute after considering its most natural linguistic meaning and legislative history, the rule of lenity eliminates all doubt: good conduct time must be based on the sentence imposed, rather than time served."

Judge Smith then directly confronts the BOP arguments that Chevron deference applied and that other court’s opinions should be followed. He points to Supreme Court and circuit court authority finding that, as a matter of separation of powers, the Executive Branch’s interpretation of a criminal statute is due no deference. He cites Justice Scalia’s concurrence in Crandon for the simple proposition that "‘we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.’" Judge Smith then sets out the two-step Chevron test and finds that Chevron only applies where the statute is still ambiguous after application of traditional tools of statutory construction – such as the rule of lenity. Because the rule of lenity eliminated any potential ambiguity, deference to the BOP’s construction of the statute is unwarranted.

Judge Smith then thoroughly reviews the good-time case law, rejecting the faulty reasoning underlying the opinions. The First Circuit and a couple of district courts found that the good time credit statute is not a criminal statute to which the rule of lenity applies. The BOP made an important admission in its pleadings: "Here, the BOP has candidly conceded that the statue is indeed a penal statute, and as noted above, this concession is fully justified."

The Ninth Circuit and other courts have ruled based in part on what they characterize as the "windfall" the prisoner would receive based on the full 54 days per year of the sentence imposed. Judge Smith explains that "this is really a matter of bookkeeping" and not windfall. "The evaluation date (or ‘good time action date’ in BOP parlance) must be adjusted each year to take into account the GCT already earned and vested." When the good time date is adjusted annually, "no windfall is occurring in the last year of imprisonment." No windfall occurs if a prisoner simply receives the credit Congress intended. Summarizing the factors that leave almost nothing to recommend the BOP’s approach, Judge Smith concludes that "faithful misinterpretation of a statute over time does not alter its original meaning." He recommends that the writ be granted.

As outlined in my previous good time blog, defenders need to be assisting prisoners in every district to litigate this issue: Leocal has undermined the reasoning of all the negative precedent on this issue. Judge Smith has provides an excellent road map for this litigation. We still have a way to go; the Seventh Circuit reversed White, and the district judge has not yet adopted Judge Smith's findings and recommendation. It's worth the effort because the ultimate effect of victory on this issue affects almost every one of our clients: 27,000 years of freedom.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Case o' The Week: Interpreting Clarity - James and the Rule of Acerbity

Hon. Judge Alex Kozinski

“This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.”

  United States v. James, 2016 WL 158559, *8 (9th Cir. Jan. 14, 2016), decision available here. (Kozinski, J., dissenting).

Players: Decision by Judge Tallman, joined by Sr. DJ Piersol. Dissent by Judge Kozinski.  Hard-fought appeal by D. Az. AFPD Keith Hilzendeger.

Facts: Twenty-eight year old T.C. was severely disabled by cerebral palsy. Id. at *1. She was largely nonverbal, and communicated displeasure with grunts or nodding her head. Id. T.C.’s legal uncle, James, was discovered having sex with her (while inside the boundaries of a reservation). Id. at *2. 

James was charged with aggravated forcible sexual assault under 18 U.S.C. § 2242(2)(B) – which prohibits sex with a victim who has the mental capacity to consent, but is “physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” Id. at *1. 

The jury returned a guilty verdict, and the district court then granted James’s Rule 29 motion. Id. at *2. The government appealed.

Issue(s): “This case turns on the breadth of the ‘physically incapable’ standard in § 2242(2)(B) for punishing a sexual act with an individual with the physical incapacity to decline participation in or communicate unwillingness to engage in the act.” Id. at *3.

Held: “We hold that the district court erred in granting that acquittal, although we acknowledge that determining what constitutes physical incapacity under § 2242(2)(B) is a difficult issue of first impression in our circuit. Applying the familiar standard under Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we hold, contrary to the district court's decision, that there was sufficient evidence to support the jury's determination by proof beyond a reasonable doubt that James violated the statute under which he was found guilty.” Id. at *1. 

“After surveying the dearth of case law, we find the cases more persuasive which punish conduct under the broader ‘physically incapable’ standard rather than the narrower ‘physically helpless’ standard because it will allow more cases to be submitted to the good judgment of a jury.” Id. at *5.

Of Note: Judge Kozinksi pens a doozy of a dissent. “I am puzzled and confused by Part III of the opinion . . .  The whole enterprise seems misguided because the statute is clear and thus not reasonably susceptible to conflicting interpretations.” Id. at *7 (Kozinski, J., dissenting). “I . . . disagree with the methodology employed by the majority in seeking to pump up the statute beyond its ordinary meaning . . . . This rule of acerbity, i.e., the rule of lenity stood on its head, is not how the criminal law is supposed to work.” Id. at *8.

Judge Kozinski reviews the district court’s compelling recitation of facts showing that T.C. actually had the ability to communicate unwillingness – the gravamen of the statute charged. Id. at *8-*11. (District Judge Neil Wake, by the way, was the jurist who granted the Rule 29 motion). 

The dissent is well worth the read, with a dispassionate analysis of the statute’s language, and frank concern for the autonomy of the physically disabled.

How to Use: The majority chides the district court for considering state decisions while interpreting a federal statute. Id. at *4. Keep those James passages handy when the government tries to incorporate (bad) state law to interpret the meaning of federal criminal statutes.

                                               

For Further Reading: Whither thou goest, beloved Rule of Lenity? Judge Kozinski argues the majority flips the rule upside down – taking a clear statute, exploring interpretations, and then expanding the definition in the statute against the defense. 

For an equally candid assessment of the decline of the Rule of Lenity (with a frank contrast to the rise of qualified immunity), see Matt Kaiser, Another Reason It’s Better to be A Cop Than Accused of a Crime, available here.

Image of Honorable Judge Alex Kozinski from http://law.nd.edu/news/43561-chief-judge-alex-kozinski-comes-to-ndls/

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

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U.S. v. Millis, No. 09-10134 (9-2-10) (Thomas with McKeown; dissent by Bybee).

Here is no water but only rock
Rock and no water and the sandy road
The road winding above among the mountains
Which are mountains of rock without water
If there were water we should stop and drink
Amongst the rock one cannot stop or think
Sweat is dry and feet are in the sand
If there were only water amongst the rock
Dead mountain mouth of carious teeth that cannot spit
Here one can neither stand not lie nor sit
There is not even silence in the mountains
But dry sterile thunder without rain

T.S. Eliot. The Waste Land (1922)(V. What the Thunder Said).

This case is about leaving water in the desert for undocumented immigrants crossing. The organization, "No More Deaths" places gallon-sized plastic water bottles at various points along crossing trails to alleviate the immigrants' exposure and prevent deaths. The water was placed in the Buenos Aires National Wildlife Refuge. The defendant admitted to U.S. Fish & Wildlife Service agents that he had placed the gallons and the reason. The agents explained that littering was a problem, and that water drums had been set up two miles way. The agents also explained that special use permits were required to allow such resources. The defendant picked up the bottles his organization had left. The agents then instructed the defendant to meet them at the next trail to retrieve other bottles. The defendant thought the agents said the next trail that had water that was hard to retrieve. The agents waited at the next trail, and when the defendant did not show up, the agents decided to issue a citation for "disposal of waste" under 50 CFR 27.94(a). The defendant argued before the court that humanitarian aid is never a crime. The magistrate court convicted, and the district court affirmed. On appeal, the defendant argued that the water was not garbage, refuge, sewage, or debris as defined under the CFR regulation as "disposal of waste." The government argued that plastic bottles were indeed garbage, and that littering was a serious problem. The 9th, using the rule of lenity, reversed the conviction. It held that whether bottles of water on trails were garbage was sufficiently ambiguous to invoke the rule of lenity. The water left was for human consumption and so arguably was not garbage. It was ambiguous. The defendant could have been charged with abandonment of property or failure to get a special use permit under that regulatory scheme, but he was not. In dissent, Bybee argues that the majority tortures the rule of lenity to reach that result, because the plastic water bottles could be clearly defined as garbage. Such bottles were a problem on the refuge, was littering, and constituted a danger to wildlife. The water bottles were for "illegal immigrants" but it would not matter if what was left were sleeping bags by an inattentive Cub Scout troop. Litter is litter. There is nothing ambiguous about it. Bybee would not invoke the rule of lenity.

Alert as to Stops & Warrants: Here is a heads up from AFPD Edie Cunningham, FPD Arizona (Tucson). If the police discover an outstanding warrant during an unlawful detention and find contraband in a search incident to arrest, the exclusionary rule might not apply. Some federal circuits and state courts have found the warrant to be an intervening factor that purges the taint of the illegality. See, e.g., United States v. Green, 111 F.3d 515 (7th Cir. 1997); United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006); People v. Brendlin, 195 P.3d 1074, 1081 (Cal. 2008); State v. Hummons, --- P.3d ----, 2010 WL 2951468 (Ariz. App. 2010).

Unfortunately, this issue is on the Supreme Court’s radar. At oral argument in Brendlin v. California, in 2007, some of the justices questioned whether the illegality of a traffic stop makes any difference when evidence is uncovered only after the discovery of an outstanding warrant during the stop. Brendlin, which held that a passenger is seized by virtue of a traffic stop and can therefore challenge its lawfulness, remanded to the state courts to "to consider in the first instance whether suppression turns on any other issue." 551 U.S. 249, 263 (2007). The California Supreme Court subsequently held that suppression was unnecessary because discovery of the unlawful warrant purged the taint of the illegal traffic stop, but it emphasized that a finding of attenuation is appropriate only in the "unusual case" where a questionable stop results in the "chance discovery" of an outstanding warrant. Brendlin, 195 P.3d at 1081.

Accordingly, some courts have maintained that suppression is necessary when an officer detains a person solely to check for warrants because application of the exclusionary rule is the only way to deter the police from randomly stopping people for that purpose. People v. Mitchell, 824 N.E.2d 642 (Ill. App. 2005); State v. Soto, 179 P.3d 1239 (N.M. App. 2008); see also United States v. Hudson, 405 F.3d 425, 440 (6th Cir. 2005) (when police make an illegal stop for the very purpose of arresting the person stopped, they are thereby exploiting the illegal stop and evidence obtained must be suppressed). And some courts that have held the exclusionary rule inapplicable when an unlawful detention results in discovery of a warrant have stressed that, although ultimately mistaken, the officer honestly believed that he or she had lawfully seized the suspect. Simpson, 439 F.3d at 492, 496; Brendlin, 195 P.3d at 1076-77, 1080; Jacobs v. Oklahoma, 128 P.3d 1085, 1087, 1089 (Okl. App. 2006).

We can only hope that other courts will apply this limitation of the exclusionary rule narrowly, if at all. But, as some of these cases illustrate, it is all too easy for courts to downplay the gravity of police misconduct and ignore the far-reaching implications of arbitrary warrant checks. See, e.g., Hummons, 2010 WL 2951468, ¶11 (finding no flagrant violation, and therefore no grounds for suppression, even if officer unlawfully detained and ran a warrants check on an African-American defendant because he was carrying a weed-eater and extension cord down the street at 9:00 A.M. despite officer’s admitted lack of reasonable suspicion); Green, 111 F.3d at 523 (no evidence of bad faith, and no suppression, where police stopped car in hope of finding fugitive but continued to unlawfully detain and run a warrants check on car’s occupants after confirming that fugitive was not present).

Case o' The Week: Ninth, En Banc, Gets its "Citations" Right -- Leal-Felix and Sentencing Guidelines

Were you "arrested" when got that that (well-deserved) speeding citation south of Barstow, on your way to Vegas?

Judge N.R. Smith doesn't think so, either. United States v. Leal-Felix, 2011 WL 596602 (9th Cir. Nov. 30, 2011), decision available here.


Players: Big victory for CD Cal. Deputy Federal Public Defender Michael Tanaka. Decision by Judge N. Randy Smith (left).

Facts: Leal-Felix pleaded guilty to illegal reentry. Id. at *1. His criminal history reflected (among other things), two citations for driving with a suspended license, issued two days apart. Id. He had been sentenced for both citations on the same date, receiving concurrent sentences. Id.

Probation hit the defendant with Criminal History (“CH”) points for both of the citations. Id. Leal-Felix objected, arguing under USSG § 4A1.2(a)(2) that the two citations should get one set of points – they were both sentenced on the same day, and were not separated by an intervening arrest. Id. Instead, the events were separated by an intervening citation. The district court disagreed, both events were assigned CH points, Leal-Felix wound up in a higher category. Id. A three-judge panel affirmed, agreeing with the Seventh Circuit that a traffic citation was an “arrest” under the guideline. Id. at *1. The case went en banc.

Issue(s): “The definition of an ‘intervening arrest’ is the subject of our interpretation here. Under this Guideline, if a citation is equivalent to an arrest, then Leal–Felix's two citations for driving with a suspended license must be counted separately. Counting each citation as an arrest, and adding two points for each, would place him in criminal history category VI, with a Guidelines range of 21–27 months. However, if a citation is not an intervening arrest, his citations would be counted together and he would be included in criminal history category V, with a Guidelines range of 18–24 months.” Id. at *2.

Held: “In Sentencing Guidelines § 4A1.2(a)(2), we interpret the term ‘arrest’ to require that the individual be formally arrested; the mere issuance of a citation, even if considered an arrest under state law, is insufficient. Therefore, we vacate the sentence imposed by the district court and remand for resentencing.” Id. at *1.

Of Note: In a well-written opinion Judge NR Smith carefully explains the obvious – a “citation” is not an “arrest.” Interestingly, a considerable chunk of his analysis relies on the interpretation of “arrest” in the Fourth Amendment context. Id. at *4-*5. The sole dissenter, Judge Rawlinson, is unpersuaded: in her view, the majority decision “improperly imports Fourth Amendment analysis into calculation of a sentence under the Sentencing Guidelines . . . .” Id. at *7.

Meanwhile, in an entertaining concurrence, Judge McKeown highlights “the most compelling reason” to conclude that a citation isn’t an “arrest:” common sense. Id. at *6. Someone who got a traffic ticket for speeding isn’t going to disclose that they were “arrested” when applying for a job, or filling out a college application, or completing adoption papers. Id.

How to Use: This case is good news for folks on the cusp of a criminal history category; it may mean one bump down in the CH category, and in this case it saved Leal-Felix three months on the low-end range. This is great news, however, for Safety Valve candidates. Recall that Safety Valve is that precious opportunity to get below a mandatory-minimum drug sentence, if a defendant has – among other things – no more than one Criminal History point. See generally USSG § 5C1.2(a)(1). Before Leal-Felix, the following criminal history would have precluded Safety Valve eligibility:

* Traffic stop and release,

* Then second traffic citation,

* Then later resolution of both offenses in one joint concurrent sentence

_________

= 2 CH points.

After Leal-Felix, under the same scenario the defendant would have 1 point, and would still eligible for Safety Valve. Bear Leal-Felix in mind for drug defendants with minor criminal histories; the case should broaden the reach of Safety Valve eligibility.

For Further Reading: Chief Deputy Fed. Public Defender Steve “Rule of Lenity” Sady is happy. Sady has been a tenacious advocate for this rule of construction, which instructs that an ambiguous term in a statute, or guideline, should be interpreted in favor of the defense. Judge N.R. Smith caps off his (correct) statutory analysis in Leal-Felix with the (correct) observation that the Rule of Lenity also requires that the guideline’s use of the term “arrest” excludes “citations.” Id. at *5.

For a survey of the Ninth’s use (and abuse) of the Rule of Lenity, visit the collection of blog entries here.



Image of the Honorable N. Randy Smith from http://isuvoice.com/wp-content/uploads/2011/09/SmithRandy2x3.jpg Image of CHP traffic citation from http://www.ocregister.com/news/drivers-297537-percent-cell.html



Steven Kalar, Senior Litigator N.D. Cal FPD. Website at www.ndcalfpd.org


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Guidelines Appeals: why within guidelines sentences are presumptively unreasonable

The courts that apply a presumption of reasonableness in Guidelines appeals violate both the Booker remedial opinion and the Fifth Amendment’s reasonable doubt requirement, as blogged here. But there is also an argument, based on a fundamental error in the calibration of the Sentencing Table, that within-guideline sentences should be viewed as presumptively unreasonable. Given the rule of parsimony in 18 U.S.C. § 3553(a), every bottom-of-the-guideline sentence is 2.2% higher than the Sentencing Commission intended.

The story starts in 1987, when the Sentencing Commission’s staff was assigned the task of creating a baseline for the Sentencing Table, upon which all federal sentences were to be graphed. To create the Sentencing Table, Sentencing Commission staff collected a large sample of sentences for a broad array of crimes and determined the actual time served as a baseline. United States Sentencing Commission, Supplemental Report On The Initial Sentencing Guidelines And Policy Statements (June 18, 1987) at 23. Then, the Commission "adjusted for good time" by figuring out the longer sentence for which the actual time served would be 85%:

"Prison time was increased by dividing by 0.85 good time when the term exceeded twelve months. This adjustment corrected for the good time (resulting in early release) that would be earned under the Guidelines. This adjustment made sentences in the Levels Table comparable with those in the Guidelines (which refer to sentences prior to the awarding of good time)."

Id.; see also U.S.S.G. Ch.1, Pt. A, § 3, para. 3 (2005) at 9 ("Honesty is easy to achieve: The abolition of parole makes the sentence imposed by the court the sentence the offender will serve, less approximately fifteen percent for good behavior.").

Thus, every federal prisoner has had their term of imprisonment imposed based on a Sentencing Table that assumes good time credit based on 15% of the sentence imposed. But the BOP takes a different view. As blogged here and here, the BOP does not base good time on the term of imprisonment, but substituted a "time served" formula that reduces maximum good time credit by seven days for every year of the sentence imposed. The BOP formula requires that ideal prisoners serve at least 87.2% of the sentence imposed. For example, on a year-and-a-day sentence, maximum good time credit is 47 days, not 54 days; on a 60-month sentence, the maximum good time credit is 235 days, instead of 270 days; on a 120-month sentence, the maximum good time credit 470 days, not 540 days. Until the BOP changes its method of calculation to mirror the method upon which the Sentencing Table is calibrated, every bottom-of-the-guideline sentence is higher than the United States Sentencing Commission intended based on its statistical methodology.

Now the seven days may not sound like much -- unless you are serving the time or waiting for a loved one. But the Supreme Court has found that a single day over-incarceration is significant for purposes of the right to counsel (Argersinger) and effective assistance of counsel (Glover). And the over-incarceration multiplies with every added year of the sentence. For all federal prisoners eligible for good time, the total time involved is over 34,000 years (188,410 prisoners x 7 days a year x 9.5 average sentence over a year and less than life ÷ 365 days in a year = 34,326 years). At $22,265.00 per year for non-capital incarceration expenditures, this amounts to over $764 million in taxpayer money that Congress did not intend or authorize to expend on incarceration for current prisoners, and over $66 million more for each new year.

But aside from waste, the institutionalized skewing of sentences to add actual time makes Guidelines sentences unreasonable. The statute calls for a sentence sufficient but not greater than necessary to serve the purposes of sentencing. 18 U.S.C. § 3553(a). So a sentence at the bottom of the guideline range is already 2.2% greater than the Sentencing Commission itself intended as presumptively reasonable under the unconstitutional pre-Booker mandatory guidelines system.

The simple answer to the argument about presumptive unreasonableness is that the BOP is misconstruing the statute. Three district courts have so found, as blogged here, but the circuits have thus far found the statute to be ambiguous and, instead of following the rule of lenity in construing an ambiguous penal statute, followed a rule of severity by following the BOP (not the Sentencing Commission) construction of the statute.

The construction of the good time credit statute is presently before the Supreme Court in three petitions for certiorari: O’Donald for the Third Circuit is linked here; Moreland for the Fifth Circuit is linked here; and Mujahid for the Ninth Circuit is linked here. Two petitions are supported by amicus briefs from the National Association of Criminal Defense Lawyers, Families Against Mandatory Minimums, the National Association of Federal Defenders, and every Federal Public and Community Defender (linked here and here). The Supreme Court has requested that the Solicitor General respond to the petitions.

If the Supreme Court grants certiorari, the arguments are very strong for bringing the BOP’s interpretation of the statute into conformance with the Sentencing Commission’s construction (and the statute’s plain meaning). Throughout the Criminal Code and the Sentencing Guidelines, "term of imprisonment" unambiguously means the sentence imposed. Even if there were statutory ambiguity, the rule of lenity would require the more generous calculation of good time, rather than the application of the Executive Branch’s harsher interpretation.

But in the meantime, the reality is that our clients are receiving sentences, and serving actual time, longer than the data-driven matrix established by the Sentencing Commission. Sentences within the guideline range, especially at the bottom of the range, are categorically unreasonable. They are actually greater than the norm the Sentencing Commission thought it was setting. Rather than the presumption of reasonableness some courts have accorded the Guidelines, sentences calculated in reliance on defective data should be presumptively viewed as unreasonably harsh.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Young: the Sixth Amendment, constitutional avoidance, and § 922(g)(8)(A)

Within 18 months of the Supreme Court instructing that federal firearm statutes must be construed to avoid constitutional doubts regarding Sixth Amendment protections during predicate criminal proceedings, the Ninth Circuit in Young reversed the grant of a judgment of acquittal, holding that a defendant who is without counsel, and has not waived counsel, during a critical stage of a criminal proceeding, has had sufficient notice and an opportunity to be heard within the meaning of the firearms statute.

Let’s set this up. Brad Young is arrested on December 6 and charged with felony harassment. At his initial appearance, he is appointed counsel, advised of a restraining order, and instructed to return two days later. At the next appearance on December 8, the restraining order at issue is served. But one problem: the lawyer is not present. And there is no Faretta hearing or other waiver of counsel, even though the formal arraignment is unquestionably a "critical stage" of the prosecution under black-letter Sixth Amendment jurisprudence (Wade and Hamilton). The trial court interacts with the defendant in the absence of counsel, and the prosecutor has direct contact with the represented party, again in the absence of counsel.

So Mr. Young is later found in possession of a gun. The district court, after jury trial, carefully looks at the statute on possession of a firearm while under certain restraining orders. To be a predicate order, it must have issued after a "hearing" of which the defendant had "actual notice" and "an opportunity to participate." 18 U.S.C. § 922(g)(8)(A). Although the jury convicted, Judge Fred L. Van Sickle entered a judgment of acquittal, reasoning that the terms of the statute could not be construed to be met under the circumstances of the case. Most importantly, "The judge who presided over Mr. Young’s arraignment did not allow him to consult with his attorney before issuing the no-contact order."

This construction is consistent with Supreme Court authority. In Shepard, one of the most important recent decisions in firearms cases, the Court considered whether, under the Armed Career Criminal Act, the characteristics of a prior conviction could be established by facts not subjected to full Sixth Amendment adjudication in the prior proceedings. The Court held, applying the Doctrine of Constitutional Avoidance, that the statute had to be construed narrowly to only allow prior convictions to be used where each element was proved or admitted in accordance with Sixth Amendment protections. Such an approach is also consistent with the Rule of Lenity, which requires that ambiguous terms be narrowly construed in favor of the defendant.

Instead of relying on these principles, the Young panel defines the terms of the statute -- which have "a variety of meanings in federal law" -- as broadly as possible, even stating that "the ‘opportunity to participate’ requirement is a minimal one." Why would Congress, after stating elements in readily understandable due process language, intend only minimal protection for the gun owner, when the Sixth Amendment so clearly sets out the due process protections required at a criminal arraignment? Here, constitutional rights are at issue. Congress stated that the fairness of the earlier proceedings is a predicate for turning otherwise lawful activity into a crime. The reasonable construction of the statute, as found by the district court, is that it does not cover a proceeding at which counsel had been appointed but was absent and where no waiver of counsel occurred. Even if there were ambiguity, the panel did not apply the Doctrine of Constitutional Avoidance and turned the rule of lenity into a rule of severity.

The Circuits seem to be resistant to full implementation of the Supreme Court’s post-Apprendi Sixth Amendment jurisprudence. Remember, not a single Circuit anticipated Blakely, then the Circuits split on application of Blakely to the federal guidelines. Since Booker, not a single Circuit has had a problem with denying retroactive relief to prisoners whose sentences were enhanced by facts proved by less than beyond a reasonable doubt (as blogged here), which the Supreme Court will review next Term (as blogged here). The Sentencing Commission reports little change in actual sentencing under the advisory guidelines, and the pattern of appellate review demonstrates general affirmances of guidelines and above-guidelines sentences, with the reversals generally limited to district courts exercising the supposed authority to impose reasonable sentences below the guidelines (as reported by Professor Berman here). And speaking of appellate review, half the Circuits apply a presumption of reasonableness, which sneaks the mandatory aspects of the old guideline system through the backdoor (as set out here and 18 Fed. Sent. Reptr. 170).

In the face of the resistance to the Supreme Court's Sixth Amendment jurisprudence, our job is to advocate relentlessly and consistently to assure that our clients do not suffer convictions or serve more time based on the practices and statutory interpretations that raise serious constitutional doubts. This case should be reheard en banc to bring the Ninth Circuit in line with the methodology of constitutional avoidance and the respect for the Sixth Amendment required by the Supreme Court.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon

Habibi: Civil “Aggravated Felony” Definition Clashes With Supreme Court Rules Interpreting The Same Statute

On September 14, 2011, the Ninth Circuit decided in Habibi how long it takes for a year to elapse, holding that “one year” in the “aggravated felony” statute takes less time than an astronomical year. Even though the decision was made in a civil context, defenders will need to be aware of the ways in which this decision, which potentially increases the punishment for our § 1326 clients, clashes with the Supreme Court’s rules for construing the “aggravated felony” statute in Leocal and Lopez. The Ninth Circuit appears to be recapitulating its analytical error – eventually reversed by the Supreme Court – of giving different treatment to prior convictions in civil and criminal settings. Governing Supreme Court authority should foreclose application of Habibi in the criminal context.

In Habibi, Judge Bybee determined that the alien’s 365-day misdemeanor sentence, in the civil deportation context, met the definition of “aggravated felony” under 8 U.S.C. § 1101(a)(43). The statute designates as an “aggravated felony” “a crime of violence....for which the term of imprisonment is at least one year.” The Habibi panel established that, as a matter of scientific fact, a year elapses in about 365.2524 days. Relying on pre-Leocal Ninth Circuit authority – and never mentioning Leocal at all – the court deferred to the immigration agency’s informal reading of the statute. Science just seemed too inconvenient: “Because taking the intricacies of astronomy into account would needlessly complicate this area of law, we adopt the [Board of Immigration Appeals]’s definition.”

Not so fast: doesn’t this analysis run directly contrary to the Supreme Court’s construction of “aggravated felony” in Leocal and Lopez? In Leocal, Chief Justice Rehnquist analyzed § 1101(a)(43) in deciding whether drunk driving constituted an “aggravated felony.” In holding that the statute did not extend to drunk driving, the Court appears to have provided three reasons that Habibi’s reasoning is fundamentally flawed and that earlier precedent based on immigration agency convenience has been superseded by intervening Supreme Court authority.

First and most basically, the Supreme Court in Leocal’s footnote 8 articulated the principle that, because “aggravated felony” has criminal consequences also, any ambiguity must be resolved based on the rule of lenity: “Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies.” Given the reality-based length of a year, any ambiguity the Habibi court faced should have been resolved with a finding the 365 days is less than a year. A year may be only .2524 days more, but 365 days is not a year.

Second, the Leocal opinion emphasized that construction of the statute should be informed by the term ultimately being defined, in that case “crime of violence.” Just as the natural meaning of that term would not encompass drunk driving, the term “aggravated felony” does not naturally include Mr. Habibi’s misdemeanor conviction. Although the Habibi court noted that the federal standard could trump the state description of the offense, at the very least, the term being defined militates against treatment of a 365-day misdemeanor sentence as an “aggravated felony.”

Third, the Leocal opinion is notable for providing no deference to the immigration agency’s position. Quite properly, the Court treated the matter strictly as judicial interpretation of the statutory term. Given the potential criminal consequences, basic separation of powers values militate against deference to the Executive in a manner that expands the punishment for criminal conduct. Instead of narrowly construing a penal statute, the Habibi panel decided the case as if administrative convenience is the deciding factor. And what’s so inconvenient about defining a year as 365.2524 days?

For those who remember the Ninth Circuit’s internal split over treatment of simple drug possession as an “aggravated felony,” Habibi is like deja vu all over again. In Ibarra-Galindo, back in 2000, the court through Judge O’Scannlain held that, in a criminal case, simple possession constituted “illicit trafficking,” which included “drug trafficking offenses” if the state treated possession as a felony. Judge Canby dissented, facing down the majority and six other circuits, in reliance on a common sense reading of the statute and, in the alternative, the rule of lenity. Six years later, in Cazarez-Gutierrez, Judge Betty Fletcher wrote for the court that, in the civil deportation context, simple possession was not an aggravated felony. As a result, the same statutory words meant different things depending on their use in criminal or civil context, and, oddly enough, the harsher interpretation applied to criminal punishment.

Finally in late 2006, the Supreme Court in Lopez resolved the nationwide conflicts by holding that simple drug possession was not included as an “aggravated felony,” largely for reasons foreshadowed in Judge Canby’s Ibarra-Galindo dissent. Justice Souter, writing for all but Justice Thomas, started the opinion by describing the “aggravated felony” provision as involving both criminal and civil consequences. In contrast, the court in Habibi refers only to the consequence of removal – there is no reference to the effect on criminal sentencing. The Habibi court’s failure to recognize that there can be only one statutory definition, and that definition applies in both civil and criminal contexts, appears to be inconsistent with the Lopez methodology. The omission is also inconsistent with Figueroa-Ocampo, in which the Ninth Circuit recognized that Lopez necessarily overruled Ibarra-Galindo’s different interpretation in the criminal context: “Given the Supreme Court's discussion of the shared definition of ‘aggravated felony’ under the [Immigration and Nationality Act] and the Sentencing Guidelines, the Court's reference to Ibarra-Galindo and Cazarez-Gutierrez, and the Court's interpretation of the INA term ‘aggravated felony’ adopted by the Guidelines, it is beyond dispute that Lopez applies in both criminal sentencing and immigration matters.”

Justice Souter also followed the Leocal lead in focusing on the “commonsense conception of ‘illicit trafficking,’ the term ultimately being defined.” In Lopez, the Court cited to Leocal in objecting to turning “simple possession into trafficking, just what the English language tells us not to expect.” Again in Lopez, as in Leocal, the Court indicated no reliance on the agency interpretation of the statute. In Habibi, the natural reading of “aggravated felony,” unmediated through the Executive agency, militates against treating a 365-day misdemeanor sentence as a qualifying conviction.

While the Lopez and Leocal litigation involved large numbers of clients who suffered years of over-incarceration, the number of defendants potentially affected by Habibi is undoubtedly much smaller. But for clients facing sharp increases in sentencing exposure based on 365-day sentences, we should be prepared to litigate the position that a year means a real year in the criminal context, asserting that Habibi’s failure to address Leocal and Lopez invalidates its precedential effect under the criminal statute and guidelines. And we should be vigilant in looking critically at all civil immigration cases that, while failing to apply the narrowing rules of construction for penal statutes, construe immigration statutes broadly, thereby increasing the potential level of criminal punishment.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon