If You Really Want to Dream . . .

July 28, 2015
By Hanging Out with Carl Gunn


  •  See below.


In a post last March that I called “We Can Keep on Dreaming” (see it in the March 2015 link at the right), I talked about two bills introduced in Congress called the “Smarter Sentencing Act” and the “Justice Safety Valve Act of 2015” which would have dramatically cut mandatory minimum drug sentences and dramatically broadened eligibility for relief from mandatory minimums under the safety valve statute.  (See also “Is There Some More Real Change Going to Happen Out There?” discussing a 2014 “Smarter Sentencing Act” in the January 2014 link at the right.)  Well, if you really want to dream, take a look at the “Safe, Accountable, Fair, and Effective (SAFE) Justice Act of 2015 linked here.  It goes far beyond just adjusting mandatory minimums and the safety valve provision to fix lots more that’s wrong with our federal criminal laws.  And one of the main sponsors is Republican Congressman James Sensenbrenner.  If I recall correctly, he was one of the leading advocates of the 2003 PROTECT Act that made the Sentencing Guidelines even more inflexible than they already were (until Booker, that is).

The Act is almost 150 pages long, and you can read it at your leisure since it’s linked above, but here’s just a few highlights of what it would do:

• The bill would bar a sentencing court from considering conduct of which the defendant had been acquitted.  This would overrule the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997) and reinstate the Ninth Circuit’s decision in United States v. Brady, 928 F.2d 844 (9th Cir. 1991).  (See page 10 of the linked version of the bill.)
• The bill would allow (but in light of the use of the word “may” rather than “shall,” not require) a court to “disregard” – for purposes of both determining the “statutory range” and the guidelines – “any type or quantity of a controlled substance, firearm or ammunition that was determined by a confidential informant, cooperating witness, or law enforcement officer who solicited the defendant to participate in a reverse sting or fictitious stash-house robbery.”  (See page 11 of the linked version of the bill.)
• In a provision entitled “Presumption of Probation for Certain Offenders,” the bill provides that a court “shall” sentence an “otherwise eligible” defendant to probation if he (1) is “a first-time Federal offender” whose place of residence allows for probation; (2) did not engage in violent conduct as part of the offense; and (3) is not convicted of a federal sex offense as described in section 111 of the Sex Offender Registration and Notification Act, unless “the court, having considered the nature and circumstances of the offense and the history and characteristics of the defendant, finds on the record that a term of probation would not be appropriate.”  (See page 33 of the linked version of the bill.)
• The bill dramatically narrows applicability of the mandatory minimum provisions in the drug statutes, by (1) making the 10-year mandatory minimum provisions applicable only if the defendant was “an organizer or leader of a drug trafficking organization” and the organization had five or more participants; and (2) making the 5-year mandatory minimum provisions applicable only if the defendant was “an organizer, leader, manager or supervisor of a drug trafficking organization” and the organization had five or more participants.  It defines “participant” as that term is defined in the guidelines, i.e., as someone who is “criminally responsible,” see U.S.S.G. § 3B1.1, comment. (n.1), and also defines “organizer,” “leader,” “manager,” and “supervisor” by using guidelines commentary, compare U.S.S.G. § 3B1.1, comment. (n.4).  (See pages 38-39 and 43-45 of the linked version of the bill.)
• The bill even narrows applicability of the 20-year maximums that aren’t accompanied by a mandatory minimum (e.g., in subparagraph (C) of 21 U.S.C. § 841(b)(1)), making them applicable only if the type and quantity of the controlled substance is enough for the 5-year mandatory minimum and the defendant was employed by a drug trafficking organization that had five or more participants.  It then appears to make the 5-year maximum (e.g., in subparagraph (D) of 21 U.S.C. § 841(b)(1)) the apparent default.  (The bill gets a little convoluted and hard to follow here – and may need to be cleaned up before the bill is actually enacted – but see page 39 of the linked version of the bill.)
• The bill expands applicability of the safety valve provision in 18 U.S.C. § 3553(f).  First, it changes the criminal history category I requirement to mean the criminal history category after any downward departure under the sentencing guidelines.  Second, it allows safety valve relief for criminal history category II defendants (again, after any downward departure) unless the offense of conviction was a firearms offense, a sex offense defined in section 111 of the Adam Walsh Act, a terrorism offense, a racketeering offense, or conspiracy to use and invest illicit drug profits.  Third, it makes safety valve relief available to any defendant, regardless of criminal history category, who “committed the offense as the result of” (i) “mental illness, cognitive deficits, or a history of persistent or serious substance abuse or addiction”; (ii) “financial, emotional, or mental distress”; (iii) trauma while serving on active duty in an armed conflict zone; or (iv) “victimization” stemming from abuse by another person who directed the defendant to commit the offense.  (See pages 45-48 of the linked version of the bill.)
• The bill also narrows two of the other safety valve requirements.  First, it narrows the requirement that the defendant neither have used or made threats of violence nor possessed a firearm to eliminate the disqualifier for mere possession of a firearm, so mere possession of a firearm no longer precludes safety valve relief.  Second, it narrows the organizer/leader/manager/supervisor disqualifier to require the defendant have been convicted of being an organizer, leader, manager or supervisor.  (See page 48 of the linked version of the bill.)
• The bill narrows the category of prior drug offenses that support a prior conviction enhancement under 21 U.S.C. § 851.  First, it excludes simple possession felonies and requires the prior offense have had as an element manufacture, distribution, importation, exportation, or possession with intent to distribute.  Second, it requires that the prior offense have had a maximum term of imprisonment of 10 years or more in the jurisdiction where the defendant was convicted.  Third, it excludes convictions that occurred more than 10 years before the new offense, “excluding any period during which the defendant was incarcerated.”  (See pages 49-50 of the linked version of the bill.)
• The bill specifically authorizes resentencing in accord with the Fair Sentencing Act mandatory minimums, which would overrule cases like United States v. Augustine, 712 F.3d 1290 (9th Cir. 2013).  It also expressly authorizes resentencing under 18 U.S.C. § 3582(c)(2) for any defendant whose minimum or maximum term of imprisonment is reduced by the SAFE Act.  (See pages 56-57 of the linked version of the bill.)
• The bill amends the statutory directive on which the career offender guideline is based – 28 U.S.C. § 994(h) – to (a) substitute the Armed Career Criminal Act definition of “violent felony” for the present “crime of violence” term and (b) incorporate the new 21 U.S.C. § 851 definition with its 10-year maximum sentence requirement and its exclusion of more-than-10-year-old convictions that are noted two bullet points above.  (See page 60 of the linked version of the bill.)
• The bill narrows the applicability of 18 U.S.C. § 924(c) in two important ways.  First, it prevents imposition of the higher 25-year sentence for a second (or third or fourth or more) 924(c) conviction that’s sustained in the same case as the first conviction, thereby overruling Deal v. United States, 508 U.S. 129 (1993).  Second, it requires the gun have been on the defendant’s person or “within arm’s reach and otherwise readily and immediately accessible.”  (See pages 66-67 of the linked version of the bill.)

Hoping this bill will pass may just be more dreaming, but it does have bipartisan support and it does suggest a different attitude in Congress if people like Sensenbrenner are supporting it.  So, dream on, my friends, dream on.  And since the guidelines are only advisory anyway, how about using just the proposal of the bill as an argument for a policy disagreement variance from the guidelines, as suggested in my March 2015 post?  The bill suggests that even many present day legislators – from all points along the political spectrum – don’t think present sentences are a good idea.  Think about offering this as a reason why your judge should decline to follow the guidelines.  Urge him or her to simply disagree with the affected guideline on a policy basis – like a multitude of respected legislators.

And stay tuned.  I’ll have more in the next week or two – on some trial-related provisions in the SAFE Act.