How to Find Information on the Bureau of Prison's Sex Offender Treatment Program

For those of you who represent persons classified as sex offenders, you may want to know that the Bureau of Prisons Sex Offender Treatment Program is at Devens. There is a sex offender management program in one facility for each region. The Southeast Region's program is at Mariana.

Be advised that sex offenders are not segregated, except in the treatment program, and not likely to go to the management program's facility right off the bat. They go to management for the last portion of their sentence. The program statements for the program may be found by following the link below.

Padilla v. Kentucky decision: Supreme Court rules that Sixth Amendment requires advice on immigration consequenses of guilty plea

Today, the Supreme Court ruled that an attorney has a constitutional obligation to advise her client of the potential immigration consequences of her guilty plea. Padilla v. Kentucky (08-651). In this case, Mr. Padilla, a lawful permanent resident of the United States for more than 40 years, was charged in state court with transporting a large quantity of marijuana. Before he entered a guilty plea, he asked his attorney whether the conviction would negatively affect his immigration status. His attorney told him "...did not have to worry about immigration status since he had been in the country for so long". After pleading guilty, immigration officals initiated proceedings to remove him to his native country, Honduras, based on his plea to an "aggravated felony". Mr. Padilla sought habeas relief from his conviction, arguing that his attorney's failure to properly advise him of the inevitable removal proceedings was a violation of Strickland v. Washington. The state appellate court denied relief, finding that defense counsel was not constitutionally required to provide advice for a "collateral" proceeding unrelated to the underlying criminal matter.

Justice Stevens, writing for the majority, determined that deportation is "an intergral part-indeed, sometimes the most important part- of the penalty" one may face when pleading to specific criminal offenses. The majority noted the immense complexities of immigration law and the profound effect a guilty plea could have on a defendant's immigration status. A defendant is deprived of his Sixth Amendment right to "reasonable professional assistance" of counsel if she fails to inform her client of the potential of deportation. The Court concluded by stating its Constitutional obligation to "ensure that no criminal defendant - whether a citizen or not- is left to the 'mercies of incompetent counsel.'

Click here for a link to the article in the New York Times.

This makes the Federal Defender Program Cinco de Mayo Summit all the more timely.  There is still time to register!  The agenda includes an immigration panel with Peter Hill, Jesus Nerio and Arturo Corso which will address immigration consequences of guilty pleas.  

- RCS

BOP Medical Designations Article - Looking for more information and understanding, look no further. ...

Alan Ellis's website contains a wealth of information about sentencing and about the Bureau of Prisons. If you represent a defendant who is in need of medical designation, Mr. Ellis has a must read article on the website with loads of information. Among other things, the article explains the levels of medical classifications and how such levels are evaluated. Follow the link below for this great resource!

http://www.alanellis.com/CM/Publications/BOP-Health-Care.asp

Supreme Court hears argument on applicability of Double Jeopardy Clause to re-trials

On Monday, the Supreme Court heard oral argument on a case involving the Fifth Amendment's Double Jeopardy Clause: Renico v. Lett (09-338). In this case, the defendant was charged with second-degree murder. Following a four day trial, the jurors began to deliberate. Not long into deliberation, the jury sent two notes to the trial court. The first stated that the jurors were concerned that their potentially protracted deliberations would interfere with other courthouse proceedings. In the second note, the jurors asked the court to explain what would happen if they could not reach a unanimous verdict. After receiving the second note, the trial judge asked the foreman if he believed the jurors could reach a verdict. He said "no" after some hesitation. The court declared a mistrial and another jury was sworn for the re-trial. Mr. Lett was convicted following the second trial.
On appeal, he argued that the re-trial resulted in a Double Jeopardy violation. Although the state appellate courts disagreed, he successfully argued in federal court that the trial court failed to take adequate steps to ensure that the jury was deadlocked before it declared a mistrial, resulting in a Fifth Amendment violation. The Sixth Circuit Court of Appeals affirmed the federal district court's ruling.
The state, in its briefing to the Supreme Court, argued that the Fifth Amendment was not violated when the judge declared a mistrial based on "manifest necessity", a determination left to the "sound discretion" of the judge, because federal courts defer these decisions to state courts who are better equipped to made this determination. There is no concensus on what constitutes a "dead locked" jury and although the courts of appeal are split on the question of whether a finding of "manifest necessity" is warranted based on jury deliberations exceeding a specific time, AEDPA directs federal courts to use a highly deferential standard of review.

Mr. Lett countered by recognizing AEDPA's directives but argued that this deferential standard of review is due only when a trial judge uses "sound discretion." There is a presumption against terminating jury deliberations when a verdict favorable to the defendant could be returned. Further, the judge must ensure that the jury is truly unable to reach a unanimous verdict before a mistrial is declared.

Lastly, Mr. Lett submitted that the trial court did not adequately reflect on her decision and failed to give him the opportunity to object to the ruling. If the Supreme Court considers his silence at the conclusion of the first trial to be a waiver, that procedural bar could preclude any relief.

RCS

Another ACCA defense victory from Eleventh Circuit!

On Wednesday, the Eleventh Circuit, in United States v. Kevin Earl Sneed (09-13195, 3.24.10) ruled that the district court erred when it relied on police reports to determine that the predicate convictions were committed on separate occasions to justify application of the Armed Career Criminal Act. The Court relied on Shepard v. United States, 544 U.S 13 (2005), and found that the district court could not look beyond the charging documents, applicable statute, transcripts and any admissions a defendant makes pursuant to the plea agreement. As a result, the ACCA was inapplicable. This decision overrules Circuit precedent, United States v. Richardson, 230 F.3d 1297 (2000), that once permitted this type of evidentiary review when the charging documents did not specify when the previous crimes had been committed.

The Senate “Cracks” Cocaine Sentencing Disparity

The Senate has unanimously passed S. 1789, The Fair Sentencing Act of 2010. In this compromise legislation, the mandatory minimums for crack are adjusted to a 17.85 to 1 ratio, down from 100 to 1. It will take 28 grams of crack to get a 5 year mandatory minimum, up from five grams. It will take 280 grams to get a 10 year mandatory minimum, up from 50 grams.

The bill also contains a directive for the Sentencing Commission to, within ninety days, add aggravators and mitigators for all drug offenses, including enhancements for those who use a minor, an adult over 64, or a pregnant person to engage in trafficking, or distribute to anyone who is unusually vulnerable due to physical or mental condition. Some of the proposed adjustments may already be embodied in the Guidelines. A link to the bill is here.

The House bill, H.R.3245, the Fairness in Federal Cocaine Sentencing Act of 2009, removes all reference to cocaine base from the statute, thereby equalizing the penalties for all cocaine offenses. This bill is still pending in committee. A link to that bill is here.

The House will have to pass the Senate bill or pass its own bill and then reconcile them before the President can sign the bill into law.

Professor offers persuasive argument for new approach to sentencing those who possess child pornography.

Law Professor Jelani Exum, in his new article "Making the Punishment Fit the (Computer) Crime: Rebooting Notions of Possession for the Federal Sentencing of Child Porngraphy Offenses," notes that although federal judges are beginning to impose sentences below the applicable sentencing guildeline range, the courts should consider the effect computer behavior and the Internet have on how an offender comes into possession of child porngraphy. He argues for reform of the sentencing guidelines applicable to possessors of child pornography. His analysis could be used to justify a variance in cases that involve offenders who simply possessed the contraband.

-RS

The tentative agenda for the Cinco de Mayo Summit has been posted. Also, check out the entertainment!

The tentative agenda for the Cinco de Mayo is posted at GAN.FD.ORG under seminars.  We are expecting a productive seminar after which we will be entertained by the Mariachi del Sol Azteca, pictured below.  Click HERE for the tentative agenda.

SEARCH AND SEIZURE CASE ALERT: Arizona v. Gant rule not retroactive in the Eleventh Circuit.

In Arizona v. Gant, the United States Supreme Court held that:

Police may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.

129 S.Ct. at 1723. In United States v. Willie Davis, 08-16654, the Eleventh Circuit held that a violation of the above rule will not result in suppression of evidence seized prior to the Gant decision ( April 21, 2009) when a police officer relies on the Circuit's "well-settled precedent" that was applicable at the time of the arrest. In the Davis case, the defendant, a passenger in the car, had been arrested and placed in the back seat of a patrol car before the officer searched the vehicle. Prior to the Gant decision, police officers were allowed to search the passenger compartment of a vehicle following the lawful arrest of the occupant. New York v. Belton, 453 U.S. 454 (1981). At the time of Mr. Davis' arrest, the Belton decision was applicable. Because the officer relied on Belton, the panel ruled that the "good faith" exception to the exclusionary rule applied. The Court reasoned that the purpose of the exclusionary rule, deterence of officers who engage in misconduct, would not be furthered if law enforcement officers were penalized for abiding by circuit precedent. The Eleventh Circuit joins other circuits which have held the same. However, the Ninth Circuit reached a different conclusion in United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009). For more detail, we refer you to the case summaries available on the Fourth Amendment Blog and the Eleventh Circuit Defense Newsletter.

Photograph on license from istockphoto.

Northern District of Georgia trial ends in acquittal.

Federal Defender Program attorney Tom Hawker successfully defended his client in a federal drug and gun trial which ended in acquittal on Tuesday.  The trial was conducted before the Honorable Timothy C. Batten.  The Government elected to call only one of three police officer witnesses listed as being present during the arrest of Mr. Hawker's client.  Government experts were not asked to run fingerprint tests on the plastic bags which contained the drugs attributed to Hawker's client.

Congratulations to Federal Defender Tom Hawker on his victory!

New Supreme Court Rules effective February 16, 2010

The revised version of the Supreme Court Rules went into effect on February 16, 2010.  We previously posted about them, but now that they are in effect, we wanted to make sure that you were alert to them.  A full copy may be found HERE.  A summary of the changes may be found HERE.

New Supreme Court Speedy Trial Act Reversal. Opinion attached below.

United States v. Bloate:  Supreme Court reverses denial of defendant's motion to dismiss indictment under Speedy Trial Act, involving the issue of the excludability from the 70-day limit under 18 U.S.C. section 3161(h)(1) of time granted to prepare pretrial motions.  The opinion authored by Justice Thomas is HERE.  


Thanks to blog follower Roger C. Wilson for keeping us all current with this Supreme Court case alert!  

Also, Kish & Lietz has a nice case summary on Bloate.  A link to Kish & Lietz's blog entry is HERE.

Florida Federal Defenders win in Supreme Court on Armed Career Criminal Act predicate issue! Congress meant to capture predicates with violent force when it specified predicates involving force.

Congratulations to our colleagues in Florida who obtained a victory in the Supreme Court in Johnson v. United States, 08-6925 (March 2, 2010).  On Tuesday, the Court ruled that a conviction for simple battery under Florida law does not constitute a "violent felony" pursuant to 18 U.S.C. Section 924(e)(1) because it does not have "...as an element the use of physical force against the person of another." The government argued that the common-law definition of the crime of battery, which only requires the slightest offensive touching of another, describes the type of "force" found in the Section 924(e)(2)(B)(i) and required for application of the ACCA enhancement. The High Court rejected this argument, ruling that Congress intended to enhance the punishment of those offenders who previously engaged in conduct involving violent force capable of causing physical pain or injury to another. Unless the charging documents, plea agreement, transcripts or other factual or legal findings establish that the accused violated a statute containing the necessary element of use of violent force upon another, the prior conviction will not qualify as a predicate offense pursuant to the Armed Career Criminal Act.

The Supreme Court considers the impact of silence in response to Miranda in one of three criminal cases set down for oral argument today.

The Supreme Court hears argument in three more criminal cases this morning.  Of particular interest is Berghuis v. Thompkins, 08-1470, in which the Justices will consider a case in which a defendant was advised of his Miranda rights, acknowledged that he understood them, and then when asked if he wished to waive those rights just sat for a long period of time without saying more.  

Skilling v. United States, 0-1394, an honest services fraud issue growing out of the Enron scandal and Holland v. Florida, 09-5327 are also to be argued. The question presented in Holland v. Florida is whether “gross negligence” by a prisoner’s lawyer can amount to exceptional circumstances warranting equitable tolling. 

Photo by LunaDiRemmel (flickr)