Appeals

Today, the en banc Eleventh Circuit issued an opinion that will give some drug defendant’s a big help at sentencing. See United States v. Dupree, No. 9-13776 (11th Cir. Jan.18, 2023)(en banc). In Dupree, the Eleventh held that the definition of “controlled substance offense” in USSG § 4B1.2(b) does not include inchoate offenses, such as conspiracy and attempt.  This is another victory for the defense in using the sea change in administrative deference recognized by the Supreme Court in Kisor v.

Former presidential advisor Steve Bannon refused to comply with a subpoena from the January 6 House select committee, for which he was convicted of contempt of Congress. Bannon: Ah, but the statute requires "willful" disobedience. I may have disobeyed intentionally, but not willfully because my attorney told me not to comply. D.C.

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines (USSC press release available here).

“Not guilty means not guilty,” said Commission Chair Judge Carlton W. Reeves.

In the consolidated cases Brown v. United States, No. 22-6389 (May 23, 2024), and Jackson v. United States, No. 22-6640 (May 23, 2024), opinion here, the Supreme Court held that a state drug conviction counts as an ACCA predicate if it involved a drug on the federal schedules at the time of the state conviction.  The 6 to 3 opinion, written by Justice Alito, joined by the Chief Justice Roberts and Justices Thomas, Sotomayor, Kavanaugh, and Barrett, begins like this:

The presence of Black men serving as active judges on the federal appellate courts has stalled in the past 10 years, even as President Joe Biden has prioritized demographic diversity in his judicial nominations and almost doubled the number of Black women on the circuit courts (access full article).

The Senate Judiciary Committee advanced five of President Joe Biden’s first judicial nominees Thursday, including Ketanji Brown Jackson for the powerful D.C. Circuit, bringing them one step closer to confirmation (access full article).

Prosecutor in plea negotiations: We agree to recommend a sentence at the bottom of the guideline range. Prosecutor to district court: We recommend a sentence at the bottom of the guideline range for this top-of-the-food-chain drug dealer who is worse than a murderer. District court: Top of the guideline range it is.

In 2021, FBI agents lied to a judge, got permission to raid safe-deposit boxes owned by people suspected of no crime, and then sent hundreds of forfeiture notices never saying what the box owners did wrong. Then they lost the contents of many of the boxes, including retirees' entire life savings. But don't take our word for it. Head over to The Los Angeles Times and see the FBI agents admit as much under oath.

In Erlinger v. United States, No. 23-370 (June 21, 2024), the Supreme Court held that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate  occasions for ACCA purposes.

In an 8 to 1 decision, the Supreme Court rejected a Second Amendment challenge to 18 U.S.C. § 922(g)(8)’s prohibition against persons subject to a domestic violence restraining order possessing a firearm.  See United States v. Rahimi, No. 22-915 (June 21, 2024).