No Credit For You!

United States v. Coons, No. 07-2485-cr (2d Cir. March 30, 2009) (found here)

Coons received a 2-6 year indeterminate New York state sentence for reckless endangerment.  He was released on parole, and subsequently arrested and placed in state custody for violating the terms of his parole.  He thereafter pled guilty in federal court to being a felon in possession.  His federal sentencing was not held, however, until after he'd been in state custody for 16 months. 

At sentencing, the court determined his advisory range to be 27-33 months, and sentenced him to 27 months.  The sentencing court did not credit Coons for the 16 months that he'd already been in custody, as it could have under U.S.S.G. § 5G1.3(b) and (c).  The Second Circuit affirmed, basically holding that the sentencing court affirmatively decided not to give him that credit. 

So, yes, Coons could have been in state custody for those 16 months solely because of his parole violation.  But the description of the case seems to indicate that his detention was based on the federal gun charges.  Even under those circumstances, he was not entitled to credit for the 16 months.  But was it fair not to credit him?

More Crack Retroactivity Action

United States v. Wood, Nos. CR-88-0723 (CPS), CV-94-4652 (CPS), CV-96-2498 (CPS), CV-02-1678 (CPS), CV-06-2851 (CPS), 2008 WL 163694 (E.D.N.Y. Jan. 15, 2008)

Wood was sentenced to 235 months for his narcotics conviction.  On December 17, 2007 he filed a pro se motion after the Sentencing Commission voted to apply the new crack guidelines retroactively.  The Court issued an order for the government to show cause why the relief in Wood's motion should not be granted.  The Government responded that the relief sought was premature because the new crack guidelines do not become retroactive until March 3, 2008.  Not so fast, said the Court:

Although a ruling reducing the sentence before March 3, 2008 may be premature, Wood is likely to qualify for resentencing to a term of imprisonment that expires on March 3, 2008, thereby making him eligible for release on that date.  Given the substantial likelihood that Wood will be successful on the merits of his motion and the irreparable harm that would result to him if he were to remain incarcerated for a longer period of time than necessary, the government is hereby directed to state its position in writing on Wood's eligibility for resentencing on or before January 22, 2008, and to produce defendant before the undersigned on February 4, 2008, when the motion will be argued.

This is the second in a now growing trickle of retroactivity motions, and the second time an offender likely will be eligible for immediate release upon the effective date of retroactivity.  Motions of this sort raise a whole host of questions.  From the public's perspective, will the naysayers and politicians who opposed retroactivity use individuals like Wood as poster-boys for the release of convicted felons onto the streets?  Will that cause any public backlash?  From the prosecutor's perspective, will U.S. Attorneys Offices nationwide be clogged with motions like that filed by Wood that will require responses from individuals who likely were not involved in the original cases?  Will they be able to find the files from cases years ago?  Can they handle the volume?  From the courts' perspective, are the two cases so far identified in the Second Circuit an indication that, to paraphrase Dr. Martin Luther King, judges feel that they are "free at last" from harsh crack guidelines and intend to do something about it?  Stay tuned.

Send Me Back To Federal Prison!

Unger v. United States, No. 02 CV 4240, 2007 WL 3353515 (E.D.N.Y. Nov. 9, 2007)

Petitioner Ari Unger brings an unusual claim.  He contends that he was incorrectly credited for time served toward his federal sentence and, as a result, prematurely returned to New Jersey state custody.  Petitioner seeks his return to federal prison.

Unusual indeed.  Appeal denied, though, because Unger had failed to exhaust his administrative remedies.  Moreover, since filing his petition, Unger had been released on parole from state custody.  Consequently, the court could not grant relief that would satisfy his request.

Note To District Court Judges From The Second Circuit

United States v. Hall, Docket No. 05-6919-cr (Aug. 30, 2007) (found here)

The Second Circuit affirmed the district court's sentence, but remanded to amend the written judgment to comply with 18 U.S.C. § 3553(c)(2) -- the district court judge had given only an oral explanation for the below-Guidelines sentence imposed.  Here is the guidance the Second Circuit provides to district courts in putting together their written explanations of reasons (note the question I pose at the bottom):

In requiring sentencing judges to include a statement of reasons in the written judgment under section 3553(c)(2), as we do here, we are not suggesting that judges must denote every fact discussed in the setencing colloquy.  Indeed, nothing stated in this opinion should be interpreted to "require the district court to utter any specific incantation."  [citation to United States v. Rattoballi, discussed here and here, omitted.]  We do not understand Congress's intent in enacting section 3553(c)(2) to have been to divert district courts' attention from conducting a thoughtful, on-the-record, face-to-face sentencing exchange with criminal defendants to obsessing over the inclusion of every material sentencing fact in a written order of judgment.  We are, moreover, mindful that the circulation through the Bureau of Prisons of a detailed statement of the facts underlying some reasons can present particular concerns, as for example, when a statement references sensitive information about crime victims, the defendant, or members of his family.  Thus, we reiterate that the statutory requirement for specific reasons does not necessarily require an exhaustive statement of facts.  Indeed, a simple summary of facts should generally suffice for Bureau of Prisons review.  In conducting our own appellate review of the reasonableness of the sentence, we can, of course, look beyond the reasons stated in the written judgment to consider, as we have in this case, a district court's oral statements of reasons at sentencing as well as the full record of proceedings.

Does the final part of this statement indicate some inclination toward de novo sentencing review?

Life Insurance And Supervised Release

United States v. Grimaldi, Crim. No. 3:01cr131 (JBA), 2007 WL 1051451 (D. Conn. April 5, 2007)

How much does it cost to insure the life of a defendant on supervised release?  $2,915 per year.  How much does it cost to insure the life of the same individual not on supervised release?  $940 per year.

What's a defendant to do when he finds out about the cost differential?  Seek early termination of his supervised release and have the court agree that: (1) he "has commendably complied with all required conditions of his supervised release, including payment of fine and restitution"; (2) "he has been in compliance with all terms and conditions of his supervised release, and has satisfied the fine and restitution obligations of his sentence, including payment of all applicable back taxes and completion of community service; (3) the "United States Probation Officer supports [his] request for early termination; (4) he has undertaken volunteer work as part of a program of rehabilitation; (5) he has satisfied eight of the nine extra-statutory factors to be considered in determining whether to approve early termination of supervised release; (6) "there is nothing to fault and much to commend about the defendant's post-release conduct"; and (7) "his moral compass will never again take him so far off course."

What did the district court do?  Deny the petition.  Why?

While Grimaldi's apprehension about providing for the financial needs of his wife and parents if he should die is understandable, he points to no particular risk that his life expectancy is compromised in any way.  Moreover, while Mr. Grimaldi may not have known about this consequence of his conviction, it is not a new circumstance, and since a term of supervised release is statutorily required for his offense of conviction, the increased premium is a consequence for every convicted felon seeking a life insurance policy with Prudential.

Another Above Guidelines Sentence Affirmed As Reasonable

United States v. Pierre, No. 05-6629 (2d Cir. Sept. 22, 2006) (found here)

A quick note on an above-Guidelines sentence affirmed as reasonable, albeit in a slightly different context.

Pierre violated the terms of his probationary sentence and was sentenced to two years imprisonment for that violation -- notwithstanding that the Government and the advisory Guidelines revocation table (Section 7B1.4(a)) called for a sentence of between three and nine months.  The Second Circuit affirmed the two year sentence as "substantively reasonable" in light of the district court's findings, including that it had already afforded Pierre substantial lenience and that Pierre had demonstrated a total lack of respect for the law as well as a pattern of criminality.  The court also noted Pierre's cognitive and psychological limitations, "but found that this circumstances did not explain or excuse the extent of his failure while on probation."

Although likely warranted here, the affirmance of this above-Guidelines sentence is consistent with the discouraging nationwide pattern of reversing below-Guidelines sentences as unreasonable and affirming above-Guidelines sentences as reasonable.

As an aside, the Second Circuit noted in an unusual footnote that "[a]lthough it is not this Court's role to determine where Pierre is held during the term of his incarceration, we hope that efforts are made to ensure that he is in a facility that provides the mental and vocational services he clearly needs."  Query whether the BOP will ever receive this message from the Second Circuit.

No Entitlement To Good Time Credit for Sentence Served Abroad

United States v. Hilario, Docket No. 05-3972-cr (2d Cir. May 24, 2006)

Hilario plead guilty to consipring to import ecstasy into the United States and received a sentence of 162 months imprisonment.  Hilario had previously served 26 months imprisonment in Belgium on a related charge.  At sentencing, the district court reduced Hilario's sentence by 26 months (to the 162 month term of imprisonment imposed) to account for the time that he served in Belgium on the related charge.  The district court did not, however, credit Hilario for the 4 months of "good-time" credit that he likely would have "earned" if he had served that 26 month term of imprisonment in the United States rather than in Belgium (in other words, the district court did not sentence him to 158 rather than 162 months imprisonment). 

The Second Circuit rejected Hilario's argument, finding that "the district court did not abuse its discretion in denying a downward departure on the basis of Hilario's speculative assertion that he would have earned good time credit in a BOP prison had he served his time in such a facility."  The Second Circuit's analysis is interesting because it seems to indicate that there was no abuse of discretion by the district court because Hilario's assertion was "speculative."  Does that mean that the district court would have, in fact, abused its discretion if Hilario's assertion had not been "speculative"?  I suspect not because of the discretion with which district courts are vested when it comes to downward departure motions.  I am curious, however, as to whether Hilario made his argument solely as a downward departure motion or whether he also relied on it in seeking a non-Guidelines sentence pursuant to one of the Section 3553(a) factors.  Unfortunately, the Second Circuit's opinion does not provide such information.

More on "Good Time" Credit

Grullon v. United States, Docket Nos. 98 Cr. 524 (RCC), 04 Civ. 5766 (RCC) (S.D.N.Y. Jan. 4, 2006)

Just a quick note to follow up the discussion below of Hickman v. United States.  In Grullon, the defendant argued in a petition pursuant to 28 U.S.C. 2255 that he received ineffective assistance of counsel because (among other things) his attorney "should have argued at his sentencing that he should receive credit for time he served on a related state charge."  Judge Casey of the Southern District of New York rejected defendant's argument and, in doing so, noted that his attorney had raised the issue at sentencing and that "the Court expressly declined his application."  Thus and notwithstanding the absence of any legal discussion on the point, Judge Casey's findings concerning the entitlement to good time off of a federal sentence for time served on a state conviction are consistent with those of Judge Crotty.

State "Good Time" Is Not A "Good Time" In The Federal System

United States v. Brown, Docket No. 05-1174-CR, et al., 2006 WL 13076 (2d Cir. Jan. 43, 2006)

Brown challenged his sentence arguing (among other things) that he should receive 168 days of "good time" credit for time served on a state sentence related to his federal conviction.  Judge Crotty of the Southern District of New York rejected Brown's petition based on the provisions of 28 U.S.C. 3624(b), which governs credit toward service of a sentence for good behavior.  More specifically, Judge Crotty found that 28 U.S.C. 3624(b) "makes clear that the sentence that is potentially subject to credit for good time served is the sentence the prisoner is currently serving -- i.e., the federal sentence.  A federal sentence, moreover, 'commences on the date the defendant is received in custody' by federal officials.'" 

While seemingly unconsequential, this decision is significant in guiding counsel who have clients charged and/or convicted by both state and federal authorities -- a circumstance that is increasingly more frequent.  Such counsel need to be on the lookout for those places where state and federal policies and practices concerning incarceration overlap and conflict -- including the issue of good time credit.