Fair Sentencing Act of 2010 - Emergency Amendments

On Friday, October 15, 2010, the United States Sentencing Commission promulgated temporary emergency amendments, effective Nov, 1, 2010, which implement the directives in the Fair Sentencing Act of 2010 (FSA). A reader-friendly version of the amendments can be found here. Public comment on the proposed amendments by the Federal and Community Defender community, which may be helpful in deconstructing the amendments, can be found here.

The temporary emergency amendments deals not only addresses changes in base offense levels based on the new crack/powder ratio of 18:1, but also addresses the elimination of the mandatory minimum for simple possession of crack and adds several adjustments for all drug types. Among those adjustments are various enhancements for use of violence or threatened use of violence during the commission of a drug offense, bribery or attempted bribery of a law enforcement officer to facilitate the commission of the offense, maintaining a premise for the purpose of manufacturing or distributing a controlled substance and super-aggravating role. Finally, the amendments cap a defendant's base offense level at 32 if he receives a minimal role adjustment and provide for a two level reduction for defendants who receive minimal role and who were "unwitting dupes" in the offense (i.e., minimum knowledge of scope and structure of enterprise, no monetary compensation, motivated by an intimate or familial relationship or by threats or fear when the defendant was otherwise unlikely to commit the offense).

A Practice Kit for obtaining pretrial release of non-citizen clients

The Federal Defenders of Eastern Washington and Idaho put together this handy kit of information for lawyers seeking bail for their non-citizen clients with ICE detainers:

http://www.fdewi.org/wordpress/?p=1001

Sentencing Commission Proposes Cultural Assimilation Departure for U.S.S.G. §2L1.2 cases

On April 13, the USSC unanimously voted in favor of an amendment permitting a downward departure in illegal reentry cases under U.S.S.G. §2L1.2 in cases where the defendant has established cultural ties to the United States from childhood and those ties provided the primary motivation for the reentry or continued presence in the United States. The proposed new amendment is at application note 8 to §2L1.2. Barring any action from Congress, the amendment will take effect November 1, 2010.

USSC votes to eliminate U.S.S.G. Section 4A1.1(e) from Guidelines

On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting U.S.S.G. §4A1.1(e) (adding 2 criminal history points when the instant offense was committed within two years of release from prison). The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf.

The recency amendment will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010. This does not mean, however, that courts must continue applying recency points in the interim. The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds. Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.

New resource available for tracing history of Guidelines provisions

Thanks to the National Sentencing Resource Counsel, you can now trace the history of any policy decision or guideline amendment promulgated by the United States Sentencing Commission by reviewing documents and materials from the public record of the United States Sentencing Commission that are not currently available on its website and are otherwise difficult to obtain. These include public comment (including public comment regarding the initial guideline development process), written hearing testimony from early amendment cycles (and some others), hearing transcripts (before 1997), and various reports. The website address is www.src-project.org.

Supreme Court holds that defense counsel must inform client whether plea carries a risk of deporation

In Padilla v Kentucky, __ S. Ct. __, 2010 WL 1222274 (Mar. 31, 2010), a five-justice majority held that because "negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel," and because deportation is virtually mandatory and inevitable for a vast number of noncitizens convicted of crimes and is "an integral part-indeed, sometimes the most important part of the penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes," ... "counsel must inform her client whether his plea carries a risk of deportation."

So, what advice is required?

"[W]hen the deportation consequence is truly clear, as it was in this case [drug offenses except for the most insignificant marijuana offenses are deportable, 8 U.S.C. § 1227(a)(2)(B)(i)], the duty to give correct advice [i.e., you will be subject to deportation if you plead guilty to this charge] is equally clear." But "[w]hen the law is not succinct and straightforward (as it is in many of the scenarios posited by Justice Alito in the opinion), a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences."

In the wake of Padilla, the Immigrant Defense Project has issued the following practice advisory which provides information and strategies for dealing with the implications of Padilla:

DUTY OF CRIMINAL DEFENSE COUNSEL REPRESENTING
AN IMMIGRANT DEFENDANT AFTER PADILLA V. KENTUCKY