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Sunday, August 24, 2014
Will third time be a charm in federal sentencing of child porn defendant Richard Bistline?
Regular readers and those who follow closely federal sentencing of child pornography offender will recall the name Richard Bistline: as detailed in posts linked below, the Bistline's sentencing created a kind of battle royale between US District Judge James Graham and the Sixth Circuit. This coming week, as reported in this Columbus Dispatch article, Bistline is scheduled to be resentenced yet again, this time by a different district judge after Judge Graham's prior sentences were twice found to be substantively unreasonable by the Sixth Circuit. Here are excerpts from the Dispatch article providing the backstory:
Are federal sentencing guidelines for possessing child pornography too harsh? Calling the guidelines "draconian," U.S. District Judge James L. Graham has become increasingly vocal in his criticism from the federal bench in Columbus.
Possessing child porn is vastly different from distributing or producing it, Graham said in an interview last week. "The purveyors or producers of these images deserve the most severe punishment we can give them. My concern is the people who end up possessing it."
Richard Bistline, a Knox County man, is to be in federal court on Wednesday to be sentenced for the third time for child-porn possession. His case thrust Graham into the spotlight in 2010 after the judge sentenced Bistline, of Mount Vernon, to one day in prison, 30 days of home confinement and 10 years of probation. The recommended sentence under federal guidelines was five to six years.
Assistant U.S. Attorney Deborah A. Solove appealed Graham's sentence to the 6th U.S. Circuit Court of Appeals, which ruled that the penalty did not reflect the seriousness of the offense. The appeals court ordered Graham to resentence the defendant. But a defiant Graham again sentenced Bistline to a single day in prison, although he increased the home confinement to three years. Solove again appealed, and the 6th Circuit court again ruled that Graham's sentence was too lenient. The court removed Graham from the case.
Judge George C. Smith is to sentence Bistline on Wednesday....
Graham says the guidelines for child-porn possession are outdated. Adding points for looking at child porn on a computer is unjustified, he said, because nearly all of it is accessed that way. Adding points for possession of numerous images is unjustified because "current technology produces numerous images with one key stroke or mouse click," he said....
In its second Bistline ruling, the appeals court wrote that possessing child porn "is not a crime of inadvertence, of pop-up screens and viruses that incriminate an innocent person." Possession becomes a crime "when a defendant knowingly acquires the images — in this case, affirmatively, deliberately and repeatedly, hundreds of times over, in a period exceeding a year."
Graham isn't alone in his contention that the guidelines are outdated. A 2013 U.S. Sentencing Commission report on federal child-porn guidelines noted that many of the sentencing enhancements designed to further punish the worst possessors now apply to most offenders....
Other men who have pleaded guilty to one count of child-porn possession in federal court in Columbus, as Bistline did, have received multiple-year sentences. Among them: former special deputy sheriff Todd R. German of Union County, sentenced last year to four years; former Reynoldsburg teacher Matthew Fisher, sentenced in 2011 to three years; and former Columbus doctor Philip Nowicki, sentenced in 2011 to two years.
Graham said most of the child-porn-possession defendants he sees have no previous criminal record and "are involved in viewing these images as a result of what appears to be a form of addiction I think is becoming more and more prevalent in today's society, affecting people of all ages." Just by being found guilty, he said, they face ruined lives, for both themselves and their families. "They need to stop it," he said. "The men who are doing this are going to get caught."
Prior related posts:
- Sixth Circuit finds substantively unreasonable a one-day of lock-up for child porn downloading
- District Judge at resentencing continues to resist federal child porn guidelines even after Sixth Circuit reversal
- "Should defendants' age, health issues be sentencing factors?"
- Sixth Circuit panel, again, finds substantively unreasonable a non-prison sentence for child porn downloading in Bistline
August 24, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (7) | TrackBack
Thursday, August 14, 2014
US Sentencing Commission finalizes its policy priorities for coming year
As detailed in this official press release, the "United States Sentencing Commission today unanimously approved its list of priorities for the coming year, including consideration of federal sentences for economic crimes and continued work on addressing concerns with mandatory minimum penalties." Here is more from the release:
The Commission once again set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of some mandatory minimum penalties and consider expanding the "safety valve" statute which exempts certain low-level non-violent offenders from mandatory minimum penalties....
The Commission also set out its intention to consider potential changes to the guidelines resulting from its multi-year review of federal sentences for economic crimes. "For the past several years, we have been reviewing data and listening to key stakeholders to try to determine whether changes are needed in the way fraud offenses are sentenced in the federal system, particularly in fraud on the market cases," Saris said. "We look forward to hearing more this year from judges, experts, victims, and other stakeholders on these issues and deciding whether there are ways the economic crime guidelines could work better."
The Commission will continue to work on multi-year projects to study recidivism comprehensively, including an examination of the use of risk assessment tools in the criminal justice system. The Commission will also consider whether any amendments to the guidelines or statutory changes are appropriate to facilitate consistent and appropriate use of key sentencing terms including "crime of violence" and "drug trafficking offense."
The Commission is undertaking new efforts this year to study whether changes are needed in the guidelines applicable to immigration offenses and whether structural changes to make the guidelines simpler are appropriate, as well as reviewing the availability of alternatives to incarceration, among other issues.
The official list of USSC priorities is available at this link, and I found these items especially noteworthy (in addition to the ones noted above):
(4) Implementation of the directive to the Commission in section 10 of the Fair Sentencing Act of 2010, Pub. L. 111–220 (enacted August 3, 2010) (requiring the Commission, not later than 5 years after enactment, to "study and submit to Congress a report regarding the 3 impact of the changes in Federal sentencing law under this Act and the amendments made by this Act")....
(10) Beginning a multi-year effort to simplify the operation of the guidelines, including an examination of (A) the overall structure of the guidelines post-Booker, (B) cross references in the Guidelines Manual, (C) the use of relevant conduct in offenses involving multiple participants, (D) the use of acquitted conduct in applying the guidelines, and (E) the use of departures.
August 14, 2014 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, August 13, 2014
Noting the push for reforming the fraud federal sentencing guidelines
This lengthy new AP article, headlined "Sentencing Changes Sought for Business Crimes," discusses the on-going push to reform the federal sentencing guidelines for fraud offenses. Here are excerpts:
The federal panel that sets sentencing policy eased penalties this year for potentially tens of thousands of drug dealers. Now, defense lawyers and prisoner advocates are pushing for similar treatment for an arguably less-sympathetic category of defendants: swindlers, embezzlers, insider traders and other white-collar criminals.
Lawyers who have long sought the changes say a window to act opened once the U.S. Sentencing Commission cleared a major priority from its agenda by cutting sentencing ranges for nonviolent drug dealers. The commission, which meets Thursday to vote on priorities for the coming year, already has expressed interest in examining punishments for white-collar crime. And the Justice Department, though not advocating wholesale changes, has said it welcomes a review.
It's unclear what action the commission will take, especially given the public outrage at fraudsters who stole their clients' life savings and lingering anger over the damage inflicted by the 2008 financial crisis.
Sentencing guidelines are advisory rather than mandatory, but judges still rely heavily on them for consistency's sake. The discussion about revamping white-collar sentences comes as some federal judges have chosen to ignore the existing guidelines as too stiff for some cases and as the Justice Department looks for ways to cut costs in an overpopulated federal prison system....
The commission's action to soften drug-crime guidelines is a signal that the time is ripe, defense lawyers say. Just as drug sentences have historically been determined by the amount of drugs involved, white-collar punishments have been defined by the total financial loss caused by the crime. Advocates hope the commission's decision to lower sentencing guideline ranges for drug crimes, effectively de-emphasizing the significance of drug quantity, paves the way for a new sentencing scheme that removes some of the weight attached to economic loss.
A 2013 proposal from an American Bar Association task force would do exactly that, encouraging judges to place less emphasis on how much money was lost and more on a defendant's culpability. Under the proposal, judges would more scrupulously weigh less-quantifiable factors, including motive, the scheme's duration and sophistication, and whether the defendant actually stole money or merely intended to. The current structure, lawyers say, means bit players in a large fraud risk getting socked with harsh sentences despite playing a minimal role....
No one is seeking leniency for imprisoned financier Bernie Madoff, who's serving a 150-year sentence for bilking thousands of people of nearly $20 billion, or fallen corporate titans whose greed drove their companies into the ground. But defense lawyers are calling for a sentencing structure that considers the broad continuum of economic crime and that better differentiates between, for example, thieves who steal a dollar each from a million people versus $1 million from one person.
Any ambitious proposal will encounter obstacles. It's virtually impossible to muster the same public sympathy for white-collar criminals as for crack-cocaine defendants sentenced under old guidelines now seen as excessively harsh, which took a disproportionate toll on racial minorities. The drug-sentencing overhaul also was promoted as fiscally prudent, because drug offenders account for roughly half the federal prison population. Tea Party conservatives and liberal groups united behind the change.
In comparison, the clamor for changing white-collar guidelines has been muted. The Justice Department, already criticized for its paucity of criminal prosecutions arising from the financial crisis, has said it's open to a review but has not championed dramatic change. "I don't think there's a political will for really cutting back or retooling the guidelines," said Columbia University law professor Daniel Richman.
August 13, 2014 in Federal Sentencing Guidelines, Offender Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack
Tuesday, August 12, 2014
Eleventh Circuit finds probation sentence for public corruption substantively unreasonable
All federal sentencing fans and white-collar practitioners will want to be sure to check out a lengthy opinion today from the Eleventh Circuit in US v. Hayes, No. 11-13678 (11th Cir. Aug 12, 2014) (available here). This start to the majority opinion in Hayes highlights why the substance of the ruling is noteworthy:
"Corruption," Edward Gibbon wrote more than two centuries ago, is "the most infallible symptom of constitutional liberty." EDWARD GIBBON, THE HISTORY OF THE DECLINE AND FALL OF THE ROMAN EMPIRE, Vol. II, Ch. XXI, at 805 (David Womersley ed., Penguin Classics 1995) [1781]. And so, although unfortunate, it is perhaps not surprising that, even today, people continue to pay bribes to government officials with the expectation that they will make decisions based on how much their palms have been greased, and not what they think is best for the constituents they serve.
In this criminal appeal involving corruption in Alabama's higher education system, we consider whether the district court abused its discretion by imposing a sentence of three years of probation (with a special condition of six to twelve months of home confinement) on a 67-year-old business owner who — over a period of four years — doled out over $600,000 in bribes to a state official in order to ensure that his company would continue to receive government contracts, and whose company reaped over $5 million in profits as a result of the corrupt payments. For the reasons which follow, we hold that such a sentence was indeed unreasonable.
Adding to the fun and intrigue of the ruling, Judge Tjoflat has a dissent that runs almost twice as long as the extended majority opinion. Here is how it gets started (with footnotes omitted):
I fully agree with the court that the sentence of probation Hayes received in this case of massive public corruption is shockingly low and should not have been imposed. In appealing the sentence, the Government treats the District Court as the scapegoat, as if placing Hayes on probation was all the court's doing. The truth is that it was the Government's doing. To ensure that Hayes was given adequate credit for cooperating in its investigation, the Government deliberately led the District Court to abandon the Sentencing Guidelines, which called for a prison sentence of 135 to 168 months, and then to ignore the Supreme Court's explicit instructions, in Gall v. United States, 552 U.S. 38, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007), on the procedure to use in fashioning an appropriate sentence. This set the stage for the court's adoption of a fictitious Guideline range of 41 to 51 months and its creation of a downward variance to a sentence of probation.
In appealing Hayes's sentence to this court, the Government deliberately avoids any discussion of the District Court's procedural error. To the contrary, it accepts the fictitious Guideline range the court adopted. All it complains of is the variance from that fictitious range to a sentence of probation, arguing that it is substantively unreasonable. Because it invited the procedural error, which, in turn, led to the complained-of substantive error, the "invited error doctrine" precludes the Government from prevailing in this appeal. Yet the court fails to acknowledge that a procedural error has occurred. Instead, it assesses the substantive reasonableness of Hayes's procedurally flawed sentence — something the Supreme Court prohibits — and thereby avoids the need to grapple with the Government's invited error. I dissent from the court's failure to invoke the doctrine and to send the Government hence without day.
In part I of this opinion, I briefly recount the facts giving rise to Hayes's conviction and sentencing. In part II, I describe how the Guidelines are supposed to operate and will show how the Government and the District Court misapplied the Guidelines and set the stage for the sentence at issue. Part III outlines the role the courts of appeals play in reviewing a defendant's sentence, pinpoints the procedural errors in this case, and explains why the invited error doctrine precludes the Government from capitalizing on its induced error and obtaining relief. Part IV concludes.
August 12, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack
Monday, July 28, 2014
Fascinating Fourth Circuit split over how federal sentencing problems should inform guideline interpretation
I just noticed a notable ruling by a split Fourth Circuit panel from late last week in US v. Valdovinos, No. 13-4768 (4th Cir. July 25, 2014) (available here). The precise legal issue concerning guideline interpretation in Valdovinos is not all that compelling, but how the judges dispute the right way to resolve the issue surely is. Here is how the panel majority opinion (running 18 pages) concludes:
For the foregoing reasons, we hold that North Carolina's legislatively mandated sentencing scheme, not a recommended sentence hashed out in plea negotiations, determines whether an offender's prior North Carolina conviction was punishable by more than a year in prison. Because Valdovinos's offense of conviction was indeed punishable by imprisonment exceeding one year, it qualifies as a predicate felony under Section 2L1.2(b)(1)(B) of the Guidelines [thereby enhancing his sentence]. We appreciate the fervor and policy arguments of our friend in dissent. Indeed, we can agree with many of the latter. What we cannot agree with is that "application of relevant precedent" does not require the result here. Carachuri and Simmons do just that. The judgment of the district court is affirmed.
Here is how Judge Davis's remarkable dissenting opinion (running 30 pages) gets revved up and concludes (emphasis in the original):
Our disagreement as to the outcome in this case stems, I think, less over the content and application of relevant precedent and more from a fundamental disagreement regarding our role as arbiters of a flailing federal sentencing regime. Where, as here, we have been presented with a choice in how to interpret the interstices of federal sentencing law, and where one choice would exacerbate the harmful effects of over-20 incarceration that every cadre of social and political scientists (as well as an ever-growing cohort of elected and appointed officials, state and federal, as well as respected members of the federal judiciary) has recognized as unjust and inhumane, as well as expensive and ineffectual, this insight can and should inform our analysis. I deeply regret the panel's failure to take advantage of the opportunity to do so here....
Here, in a tiny corner of the chaotic morass that is federal sentencing law, Mr. Valdovinos has offered us a measured approach, to a novel issue of federal sentencing law, that adheres to Supreme Court and our relevant circuit precedents and is consistent with our values. If accepted by this panel, his argument, which is surely more than merely "clever", see ante, at 8, would affect a tiny number of federal cases drawing legal relevance from North Carolina's historical (and now superseded) sentencing regime. And Mr. Valdovinos's sentence in this case likely would be reduced to a bottom guideline of 15 months, instead of the bottom guideline sentence he received, 27 months. He'd soon be on his way home to Mexico, if not already arrived.
That the majority declines the opportunity to decide this case on the foundations discussed herein is regrettable, a choice that not only ignores the growing wisdom informed by widespread acknowledgement of our unjust federal sentencing jurisprudence, but actually hinders its progress. Would that my friends could see that it's a new century, complete with a host of profound and valuable insights at our avail. I discern no compelling reason why, in the performance of our adjudicative responsibilities, which every member of the panel has unfailingly carried out to the best of our ability in this case and in full accordance with our solemn oath to "administer justice," 28 U.S.C. § 453, we ought not to draw on these insights.
One of them is that sometimes, in our shared quest for justice under law, it requires so little of us to achieve so much. Respectfully, I dissent.
July 28, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Tuesday, July 22, 2014
Within-guideline sentences remain below 50% according to latest quarterly USSC data
As reported in this post a few months ago, US Sentencing Commission First Quarter FY14 Quarterly Sentencing data included some big news: for the first time, less than half of all federal sentences imposed were technically "within-guideline" sentences. To be exact, in that quarter, only around 49% of the 18,169 sentences imposed were within-guideline sentences.
Today, the USSC released, via this document, its Second Quarter FY14 Quarterly Sentencing data, and it remains the case that a slight majority of federal sentences are being imposed outside the guidelines. But, as Table 4 on this latest data run reveals, this reality is partially a product of the fact that in the second quarter of FY14 there was a record-high percentage of above-guideline sentences (2.5%) and a record-high percentage of government-sponsored below-guideline sentences (28.6%). In this last quarter, notably, there was actually a small downtick in the number of below guideline sentences imposed by federal district judges (from 20.7% of all federal cases down to 20.1%).
As I have said before, I believe all the recent talk about the need for federal sentencing reform is likely finding expression in the way both federal prosecutors and federal judges are now using their sentencing discretion. The data from the last few quarters suggest that, as we hear ever more public policy groups and politicians on both the right and the left echoing AG Eric Holder's call for less reliance on long terms of incarceration, more federal prosecutors and federal judges feel ever more justified in seeking/imposing more sentences below the guidelines.
July 22, 2014 in Booker in district courts, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, July 21, 2014
How many of nearly 50,000 federal prisoners need a lawyer to help with drug sentence reduction efforts? How many will get a lawyer?
The questions in the title of this post are my first "practical aftermath" questions in the wake of the US Sentencing Commission's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive (basics here). As hard-core federal sentencing fans likely already know, most lower federal courts have ruled that federal prisoners do not have a Sixth Amendment right to counsel applicable at the sentence modification proceedings judges must conduct to implement reduced retroactive sentencing guidelines. Consequently, none of the nearly 50,000 federal drug offense prisoners who may soon become eligible for a reduced sentence have any right to legal assistance in seeking this reduced sentence.
Fortunately for many federal prisoners seeking to benefit from previous guideline reductions, many federal public defender offices have traditionally made considerable efforts to provide representation to those seeking reduced sentences. But even the broadest guideline reductions applied retroactively in the past (which were crack guideline reductions) applied only to less than 1/3 of the number of federal prisoners now potentially eligible for reductions under the new reduced drug guidelines. I suspect that pubic defenders are unlikely to be able to provide significant legal help to a significant number of drug offenders who will be seeking modified sentences under the new reduced drug guidelines.
I raise this point not only to highlight the legal services need created by the USSC's big, important vote late Friday to make its new reduced drug offense guidelines fully retroactive, but also to wonder aloud whether lawyers who have been gearing up to help with clemency applications might be now usefully "detailed" to help with retroactive application of reduced drug sentences. In contrast to clemency petitions, in which legal arguments are somewhat less important than equitable claims, the proper application of new reduced drug offense guidelines can involve various legal issues that may really need to be addressed by sophisticated legal professionals.
Some recent related posts on reduced drug guideline retroactivity:
- Big US Sentencing Commission hearing on reduced drug guideline retroactivity
- DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
- Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines
- Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18
- USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines
July 21, 2014 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19) | TrackBack
Friday, July 18, 2014
USSC votes for full (though slightly delayed) retroactivity of new reduced drug guidelines
I just received this early report via a credible source as to what the US Sentencing Commission did this afternoon on the issue of making its new lower guidelines retroactive:
The Commission just voted unanimously to make the "drugs minus 2" amendment retroactive with a single limitation -- no order reducing a sentence can take effect until Nov. 1, 2015. This is later than the Judicial Conference recommended (they proposed that it effect in May 2015 to give courts and probation time to prepare)....The Commission predicts that more than 46,000 will be eligible to seek a reduction. Part of the reason for the delayed effective date is to make sure each inmate is released with a re-entry plan and the opportunity for transitional steps such as halfway houses or home confinement.
UPDATE: Here is a link to the USSC's official press release about its vote, which starts this way:
The United States Sentencing Commission voted unanimously today at a public meeting to apply a reduction in the sentencing guideline levels applicable to most federal drug trafficking offenders retroactively, meaning that many offenders currently in prison could be eligible for reduced sentences beginning November 2015.
The Commission voted unanimously in April to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types, which may mean lower sentences for most drug offenders going forward. Today the Commission decided that judges could extend that reduction to offenders currently in prison, but with a requirement that reduced sentences cannot take effect until November 1, 2015. Under the guidelines, no offender would be released unless a judge reviews the case to determine whether a reduced sentence poses a risk to public safety and is otherwise appropriate.
"This amendment received unanimous support from Commissioners because it is a measured approach," said Judge Patti B. Saris, chair of the Commission. "It reduces prison costs and populations and responds to statutory and guidelines changes since the drug guidelines were initially developed, while safeguarding public safety."
Congress has until November 1, 2014 to disapprove the amendment to reduce drug guidelines. Should Congress choose to let the guideline reductions stand, courts could then begin considering petitions from prisoners for sentence reductions, but no prisoners could be released pursuant to those reductions before November 1, 2015.
ANOTHER UPDATE: Here is a link to the official statement in response to this vote from AG Eric Holder, which runs this single paragraph:
"The department looks forward to implementing this plan to reduce sentences for certain incarcerated individuals. We have been in ongoing discussions with the Commission during its deliberations on this issue, and conveyed the department's support for this balanced approach. In the interest of fairness, it makes sense to apply changes to the sentencing guidelines retroactively, and the idea of a one-year implementation delay will adequately address public safety concerns by ensuring that judges have adequate time to consider whether an eligible individual is an appropriate candidate for a reduced sentence. At my direction, the Bureau of Prisons will begin notifying federal inmates of the opportunity to apply for a reduction in sentence immediately. This is a milestone in the effort to make more efficient use of our law enforcement resources and to ease the burden on our overcrowded prison system."
July 18, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8) | TrackBack
Thursday, July 17, 2014
Huge reduced drug guideline retroactivity decision expected from US Sentencing Commission on 7/18
As this official public notice reports, on July 18, 2014 at 1pm EDT, the US Sentencing the Commission will hold a public meeting at which "the Commissioners will vote on whether or not to retroactively apply, in whole or in part, [its recent guideline] amendment reducing the drug quantity table by two levels." At the risk of overstating the importance of this vote, I am inclined to assert that it may be the most practically consequential USSC decision in nearly a decade. The (slightly misleading) headlines of these two media discussions of the coming vote helps to highlight why:
"Drug sentencing reforms could mean freedom for 51,000 federal prisoners"
"Thousands of Inmates Hang in the Balance of Friday Sentencing Vote"
It is likely hard for anyone who has not followed federal sentencing very closely for decades to fully appreciate all the dynamic challenges that this vote presents for the US Sentencing Commission (as well as for the US Department of Justice and for all those who work day-to-day the federal sentencing system). Helpfully, this extended BuzzFeed article by Evan McMorris-Santoro provide a primer on some of the issues swirling around this important USSC vote. The article's headline highlights its themes: "Despite Rhetoric, Obama Administration Pushes To Keep Thousands Of Felons In Jail Under Old Rules: The Justice Department announced major changes to the way federal drug crimes are punished this year. But the rules for existing convicts might be different — and many White House allies are angry."
Some recent related posts on reduced drug guideline retroactivity:
- Big US Sentencing Commission hearing on reduced drug guideline retroactivity
- DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
- Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines
July 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack
Monday, July 14, 2014
Are federal drug sentences for mules now too short?
The question in the title of this post is prompted by this notable and fascinating new article in the New York Times headlined "Second Thoughts on Lighter Sentences for Drug Smugglers." Here are excerpts:
For years, a steady parade of drug smugglers have tried all sorts of ways to ferry contraband into the United States through Kennedy International Airport in Queens, posing a challenge not only to Customs and Border Protection officers, but also to federal prosecutors.
To avoid clogging up the court, the United States attorney's office in Brooklyn has embraced a strategic approach that allows couriers to plead guilty and offer information in return for lighter sentences. The policy reflected a view among many prosecutors that the mandatory minimum sentences for drug-related offenses — which require prison terms of five years and higher in these smuggling cases — were too harsh on defendants who were typically nonviolent and disadvantaged.
But in recent months, changes in drug sentencing have served to further lower punishments for these couriers. A year ago, drug couriers regularly faced three years in prison; now they might face guidelines starting at only a few months, or no prison time at all.
The changes are raising questions of whether the pendulum has swung too far. Some prosecutors say that couriers have little to no incentive to cooperate anymore. Border patrol officials grumble that they are working to catch smugglers, only to have them face little punishment. And judges who once denounced the harsh sentencing guidelines are now having second thoughts....
The debate over what constitutes a fair sentence for drug crimes has persisted for decades. Critics — many of them judges in this court — have said that sentencing guidelines and mandatory minimum punishments had become hugely problematic. Nonviolent drug offenders, like couriers or people selling marijuana on the street, could face longer guideline sentences than an underground gun dealer. And until recently, possession of five grams of crack warranted a minimum five-year sentence. To get the same sentence for powdered cocaine possession, 500 grams would be required.
Various reforms have been instituted to address the inequities in sentencing. In 1994, a "safety valve" provision allowed nonviolent first offenders on drugs — which describes most couriers — to avoid mandatory minimums if they admitted to all prior criminal conduct. And in 2010, Congress passed legislation toward balancing the crack versus cocaine disparity....
In August, the United States attorney general, Eric H. Holder Jr., ordered prosecutors nationwide to charge couriers and other low-level drug offenders who met certain criteria in a way that did not result in mandatory-minimum sentences. (Guideline sentences must still be considered, but they are not mandatory.)
Then, in April, the United States Sentencing Commission voted to reduce sentencing guidelines for drug crimes by two points, or several months. The reduced guidelines go into effect in November, pending congressional approval, but prosecutors in many districts have agreed to apply them now.
The changes made things more difficult in Brooklyn, where prosecutors still wanted to give low-level couriers an incentive to avoid trials and to assist in prosecutions against larger drug distributors. Believing they had to further sweeten the deal, prosecutors agreed to give an additional four points off those reduced sentences for couriers who agreed to cooperate.
As a result, drug-courier defendants can now face sentencing guidelines that suggest no prison time.
My first reaction to this piece is to suggest that it's a nice change of pace for federal judges to now view at least some federal sentencing guidelines to be too lenient and that any problems this creates can and should be addressed through judicial discretion to sentence above the guidelines, case-by-case, as needed and appropriate. But I imagine this viewpoint is not very satisfying for federal prosecutors and investigators who depend on the threat of severe sentences to get mules to cooperate to their satisfaction.
For additional intriguing and diverse reactions to these intriguing new drug sentencing realities, check out these posts from other informed bloggers:
From Simple Justice here, "The Pendulum and the Mule"
From Hercules and the Umpire here, "Should Interstate 80 be treated like JFK airport in New York?"
July 14, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Scope of Imprisonment | Permalink | Comments (2) | TrackBack
Sunday, July 06, 2014
Interesting account of guidelines accounting facing former NOLA mayor at upcoming federal sentencing
This lengthy local article, headlined "Emotions aside, Nagin sentence likely to come down to math," effectively reviews some of the guideline (and other) factors likely to impact the federal sentencing of former New Orleans mayor Ray Nagin this coming week. Here are excerpts:
Under the rules, Nagin starts with a base "offense level" of 20 because he was an elected official who took multiple bribes but otherwise has no criminal history — facts that, with the jury verdict, are now undisputed.
The other major factors that will add points to his offense level include the financial "loss" the court assigns to his actions, the court's judgment as to whether he was an "organizer or leader" in "criminal activity" that involved at least five people, and whether Nagin is found to have obstructed justice by lying to investigators and to the court.
There is some gray area in all of these questions. For instance, the monetary loss can be calculated to include not only bribes paid and received, but also the proceeds of any contracts that resulted from bribes. At a minimum, however, Berrigan will almost certainly find that the loss was greater than $200,000, as the jury convicted Nagin of taking more than that amount in bribes. That would bring his offense level to 32, but it could go significantly higher depending on whether Berrigan decides to include the profits of some or all of the contracts Nagin signed....
Experts say the question of financial loss is among the thorniest in calculating guidelines. The amount of bribes paid is an imperfect measure, for contracts awarded on the basis of bribes are presumed to be inflated to cover the cost of the payoffs. At the same time, the contractor usually completes the work outlined in the contract, making it unfair to count the entire value of the contract as a loss. In Nagin's trial, the government did not present evidence to show that those who bribed Nagin failed to perform....
Other questions are similarly nuanced. If Berrigan finds Nagin obstructed justice by lying to investigators and to the jury, as prosecutors say he did on more than 25 occasions, the offense level would jump another two points. And if she finds he took a leadership role in a scheme involving five or more people, that would add as many as four more points. Though it's clear that Nagin's criminal conduct involved more than five people, experts say there may be wiggle room in that question, too....
Depending on how the judge rules on those questions, Nagin's final offense level could be as low as 32, or as high as 40 or more. Based on those numbers, the guidelines would call for a sentence ranging from 10 years at the low end to as much as 30 years or even life. A filing by Nagin's lawyer, Robert Jenkins, suggests that probation officers came up with an offense level of 38, which translates to a range of 20 to 24 years.
Jenkins asked Berrigan to consider a downward departure from that figure based on Nagin's lack of a criminal history and an argument that the crimes of which he was convicted constituted "aberrant" behavior for an otherwise upstanding citizen. But prosecutor Matt Coman argued in an opposing motion that the guidelines already take into account the mayor's unblemished past, which they do. Meanwhile, Coman said it was laughable to consider Nagin's criminal conduct as an aberration, considering that he was convicted of multiple bribery and fraud schemes that unfolded over a period of years....
Apart from applying her own analysis of the guidelines, Berrigan also has some ability to go outside the recommended range, experts said. She could grant a "downward variance" on some basis she deems appropriate, provided that she explains it and the variance is not too great. Federal law spells out a number of factors a judge may consider, from the need to protect the public from further crimes to the deterrent effect of the sentence.
July 6, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (3) | TrackBack
Sunday, June 29, 2014
Yet more ACCA messiness out of Maryland
I noted in this post last week this lengthy Baltimore Sun article discussing how the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act is messing with federal courts in Maryland. Now this new Baltimore Sun article, headlined "Federal appeals court ruling could lead to more reduced sentences; Court rules that Maryland burglary convictions should not be used to increase sentences," reviews the latest chapter to rhis saga courtesy of the Fourth Circuit. Here are the basics:
A federal appeals court ruling could add to the number of inmates with legal grounds to seek reduced sentences because of a shifting interpretation of sentencing guidelines and what constitutes a violent crime. The 4th U.S. Circuit Court of Appeals invalidated last week a 3.5-year sentence for Jose Herbert Henriquez, an El Salvadoran who pleaded guilty to illegally re-entering the United States. The lengthy sentence was based in part on a previous burglary conviction.
"A Maryland conviction of first-degree burglary cannot constitute a crime of violence," Judge James A. Wynn Jr. wrote for the majority, remanding the case to a lower court for Henriquez to be resentenced.
The finding follows a Supreme Court decision that gave judges new instructions on how to determine which state laws should count as violent. That finding and a subsequent appeals case has led to dozens of federal inmates from Maryland challenging their sentences, and Wynn's decision raises the possibility of further challenges.
Prosecutors say the technical rulings threaten to undermine efforts to impose long sentences and keep the public safe, but inmate advocates say prisoners who have been unjustly locked away for too long are finding hope in the string of court victories....
The federal sentencing guidelines call for longer sentences in unlawful re-entry cases for defendants previously convicted of a violent crime. Among those crimes, the guidelines include "burglary of a dwelling." Maryland's first-degree burglary law defines the crime as breaking into a dwelling with the intent to commit a crime of violence or a theft.
Wynn, joined by other 4th Circuit judges, found that Maryland law does not sufficiently define dwelling to ensure it's in keeping with a Supreme Court ruling that burglary only includes breaking into a building — and not, for example, a houseboat or an RV.
The Fourth Circuit ruling in US v. Henriquez, No. 13-4238 (4th Cir. June 27, 2014), is available here.
Recent related post:
June 29, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (1) | TrackBack
Tuesday, June 24, 2014
How SCOTUS Halliburton ruling could have white-collar sentencing echoes
Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here) sent me an intriguing set of insights about how yesterday's Supreme Court ruling yesterday in Halliburton v. Erica P. John Fund (available here) could possibly impact some white-collar sentencing arguments. Mark kindly allowed me to reprint his analysis here:
White collar defense practitioners should be aware of today's ruling in in Halliburton v. Erica P. John Fund. While a civil class action case, Halliburton may have some helpful applicability at sentencing.
The Court in Halliburton has expanded the application of Basic Inc. v. Levinson, 485 U. S. 224 (1988) regarding WHEN plaintiffs can prove damages in "fraud on the market cases" from a defendant's misrepresentation. In Basic the Court, held that a class of plaintiffs could prove reliance of a defendant's misrepresentation by "invoking a presumption that the price of stock traded in an efficient market reflects all public, material information—including material misrepresentations." The presumption effectively allows plaintiffs to side-step proof of actual reliance on any misrepresentations for purposes of establishing damages. Without class certification, however, individual plaintiffs cannot invoke the presumption thereby making proof of damages far more difficult. The Court held that, contrary to the Fifth Circuit, Defendant/Petitioner Halliburton could introduce evidence that any misrepresentation lacked "price impact" to prevent certification of the class.
Halliburton could be helpful in securities fraud sentencing cases inasmuch as the government usually lumps all the victims together to determine a collective "loss" for sentencing purposes without introducing any evidence that any particular victim (save for those few who may have testified at any trial) relied on any misrepresentations of the defendant. Such a collectivization of victim losses, therefore, implicitly invokes the Basic efficient market presumption allowing the government to side-step having to prove reliance by any particular victim. But just as the Commission's (relatively new and untested) modified recissory method for calculating loss in securities fraud case is subject to rebuttal, so too is the Basic presumption. In light of today's ruling in Halliburton, counsel should consider providing the Court evidence that any misrepresentation by the defendant lacked "price impact" on the victims sufficient to overcome the de facto Basic presumption with respect to collective victim losses. In this way, the Government would be required to provide evidence how individual victims relied on any misrepresentations.
To be sure, unlike in sophisticated civil class actions that require precision, since determining loss at sentencing need only be a reasonable estimate, only those victims that would materially affect the loss amount should not be granted the Basic presumption; in those cases the Government would be required to prove reliance. But this is as it should be inasmuch as years if not decades of your client's life could be at stake.
June 24, 2014 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (0) | TrackBack
Wednesday, June 18, 2014
"Sentencing Terrorist Crimes"
The title of this post is the title of this notable new article by Wadie E. Said now available via SSRN. Here is the abstract:
The legal framework behind the sentencing of individuals convicted of committing terrorist crimes has received little scholarly attention, even with the proliferation of such prosecutions in the eleven years following the attacks of September 11, 2001. This lack of attention is particularly striking in light of the robust and multifaceted scholarship that deals with the challenges inherent in criminal sentencing more generally, driven in no small part by the comparatively large number of sentencing decisions issued by the United States Supreme Court over the past thirteen years. Reduced to its essence, the Supreme Court's sentencing jurisprudence requires district courts to make no factual findings that raise a criminal penalty over the statutory maximum, other than those found by a jury or admitted by the defendant in a guilty plea. Within those parameters, however, the Court has made clear that such sentences are entitled to a strong degree of deference by courts of review.
Historically, individuals convicted of committing crimes involving politically motivated violence/terrorism were sentenced under ordinary criminal statutes, as theirs were basically crimes of violence. Even when the law shifted to begin to recognize certain crimes as terrorist in nature — airplane hijacking being the prime example — sentencing remained relatively uncontroversial from a legal perspective, since the underlying conduct being punished was violent at its core. In the mid-1990s, the development and passage of a special sentencing enhancement, U.S. Sentencing Guidelines Manual section 3A1.4, offered the opportunity for district courts to significantly increase the penalty for certain activity that fell into a defined category of what was termed "a federal crime of terrorism." Coupled with the post-9/11 trend of the government using a relatively new offense, 18 U.S.C. § 2339B, the ban on providing material support to designated foreign terrorist organizations, as its main legal tool in the war on terrorism, sentences for such crimes increased significantly, even in situations where there was no link to an act of violence. The application of section 3A1.4 invites a district court to find certain facts, under the preponderance of the evidence standard, which bring the conduct into the category of a federal crime of terrorism, thereby triggering greatly enhanced punishment. A review of the reported decisions involving section 3A1.4 reveals, however, that only in rare cases do courts find the enhancement to be improperly applied. This Article argues that, as currently understood, the application of section 3A1.4 raises serious concerns about its fidelity to the Supreme Court's Sixth Amendment jurisprudence.
The existence of a terrorism sentencing enhancement also serves as a kind of statutory basis to embolden courts of appeals to overturn a sentence as too lenient, as has been the case in certain high-profile prosecutions, such as those of Ahmad Abu Ali, Lynne Stewart, and Jose Padilla, among others. As the examples in this Article demonstrate, those courts of review that have engaged in this practice either fail to appreciate or disregard the Supreme Court's instructions to engage in a highly deferential type of review of a district court sentence. At the heart of these opinions lies a message that terrorism is especially heinous, and those convicted of terrorist crimes are particularly dangerous to the point of being irredeemably incapable of deterrence. While these sentiments may or may not be accurate, the courts of appeals adopting them cite no evidence or studies in support, creating the impression that a court of review may overturn a sentence in a terrorism case simply because it disagrees with the district court, something the Supreme Court has said is improper. In light of this recent development, this Article recommends that some combination of Congress, the United States Sentencing Commission, and the federal courts establish standards to better help a court decide when a heightened punishment might be warranted, free from unsupported assumptions about the nature of terrorism or a particular defendant.
June 18, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0) | TrackBack
Thursday, June 12, 2014
Two thoughtful criticisms of DOJ's request for only limited retroactivity of proposed lower drug guidelines
As reported here on Tuesday, the Justice Department this week advocated to the US Sentencing Commission that it make its new reduced drug guidelines retroactive only for the lowest-level offenders now serving prison sentences under the old drug guidelines. No doubt because many are eager to see the new drug guidelines made fully retroactive and because I suggested the DOJ half-a-loaf approach was politically and practically astute, I have received two lengthy and thoughtful e-mails from informed advocates which are critical of the DOJ retroactivity position and my reaction to it. With permission, I am posting the comments here.
Federal public defender Sarah Gannett had this to say:
I was the Federal Defender witness at yesterday's USSC hearing on drugs-minus-two retroactivity, and I read your post about the DOJ proposal. Although I can see how the DOJ proposal might have some facial appeal, I urge you to take a closer look at it.
There is little evidence that the exclusions the Department is proposing are tied in any meaningful way to public safety. At best, they are overbroad, and will result in deserving inmates being excluded from relief (for example, drug addicts who are in high CHCs because of multiple minor prior convictions related to their addictions). Indeed, the Commission has acknowledged that criminal history is an imperfect proxy for seriousness of criminal history and risk of recidivism, which is why the Guidelines include a departure provision for over-representation. Unfortunately, because of the way 1B1.10 is currently written, those who received over-representation departures will be ineligible for relief if the Commission adopts the DOJ proposal. Similar arguments can be made about the enhancements the DOJ proposes as limiting.
Both David Debold, on behalf of PAG, and Mary Price, for FAMM, focused on the DOJ's proposal in their testimony yesterday. You may wish to speak to either or both of them. I also encourage you to read the Defender testimony, which is available on the Commission's website. Although we did not know what the Department's proposal would be until it was announced yesterday, we anticipated and addressed many of the points the DOJ proposal raises (see especially pp. 5-6).
Full retroactivity is the just result, which the Criminal Law Committee of the Judicial Conference recognized. In fact, in her oral testimony, Judge Keeley indicated that the CLC considered a proposal like the DOJ's, but rejected it out of fairness concerns. The CLC recommended a different compromise -- which delays implementation just until the institutional players can adequately prepare to address the volume of cases. This approach is more principled than the limitations suggested by the Department. It is discussed in the CLC's statement, which also was posted. (Defenders took the position that, based on experience gained in the crack retroactivity process and other factors, the players could find a way to manage the caseload. See our statement at pp. 9-13, 14-15.)
Those who are concerned about community safety should remember that the retroactivity statute and policy statement require the sentencing judge to review and consider the appropriateness of early release in every individual case, an obligation that courts took seriously following the 2007 and 2011 retroactive crack amendments.
Former US Pardon Attorney Margaret Colgate Love had this to say:
I am genuinely puzzled by the Department's proposed "compromise" on the retroactivity issue, and surprised and disappointed by your response to it. I suggest that you compare the Department's proposal for guidelines retroactivity with the President's eight commutations last December.
Only one or possibly two of the eight individuals whose sentences were commuted -- all presumably pursuant to a favorable Department recommendation -- would qualify for relief under the DOJ proposed "compromise". Clarence Aaron was enhanced for obstruction, Gray and Wintersmith had guns, and Gilbert, Wheeler and Patterson and probably George were either career offenders or CHC III or above. Of the eight, only Jason Hernandez (a gang member charged with massive amounts of drug, with juvie gun priors) would appear to be a candidate for relief under the DOJ proposed compromise, a curious result to say the least.
It certainly raises a question why the Department thinks it is appropriate to ask the President to make these tough case-by-case calls but does not trust district judges to make them. Somehow that does not seem "politically and practically astute" (your words), or respectful of institutional roles and competencies. Moreover, if DOJ really wanted to lighten the burden imposed on its own staff by its unprecedented and possibly ill-advised invitation to all federal prisoners to apply for clemency, and to the private bar to represent them, one would think it should be asking the courts to do more of this work, not less.
Perhaps this means that DOJ will interpret and apply its six new clemency criteria narrowly, and recommend only those prisoners who fit in this minor-record-no-gun-no-obstruction category -- those few who would not benefit from the guidelines reduction because of a mandatory minimum. It is not at all clear to me that such a crabbed interpretation of the clemency initiative would be responsive to the President's clear signal in the December 8 grants about what he wants from his Justice Department.
If the only ones recommended for clemency are those who satisfy the criteria commended to the Commission by the Department, this will be a cruel hoax on federal prisoners, who are expecting a lot more. It will also be deeply unfair to the hundreds of private lawyers who have agreed to donate their time to learn a new skill in preparation for telling a prisoner's story, in what may turn out to be a false hope that one of their clients will win the clemency lottery.
I commend Judge Irene Keeley for saying that full retroactivity is a "moral issue" and the courts' "burden to bear." Good for the POs too, whose professionalism is encouraging. I agree with Judge Keeley that it would be fundamentally unfair to categorically deny full retroactivity to prisoners, just as it would be fundamentally unfair to categorically exclude certain prisoners from clemency consideration.
I hope the Department -- and the President -- will come to see that the apparatus already exists to achieve sentencing fairness, and it is in the courts not the executive. I hope also that this President does not turn out to be the third in a row to be embarrassed by his Justice Department's clemency program.
Some recent related posts:
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
- Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
June 12, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3) | TrackBack
Wednesday, June 11, 2014
Some new posts highlighting the "tough-on-crime" take on federal drugs sentencing reform
Long-time readers know that we used to be able to get Bill Otis's tough-on-crime perspective on sentencing reform via the comments to posts here, but now we all need to head over to Crime & Consequences to see his take on current sentencing events. Not surprisingly, the discussion by US Sentencing Commission about whether to make its new lower drug guidelines retroactive has Bill going strong, and here are a sampling of him recent post from C&C:
DOJ Recommends Large Scale Retroactivity for New, Lower Guidelines
The Sentencing Commission's See-No-Evil Stance on Recidivism
The titles of all these posts provide a flavor of their contents, but I urge all folks following closely the debates over recent federal sentencing reform to click through and read all Bill has to say on these topics. Notably, the first post listed above highlights how perspectives on broader reform debates will necessarily inform views on particular positions taken on smaller issues. Bill assails DOJ for advocating for "large scale retroactivity" when it decided to yesterday to "support limited retroactivity of the pending drug guideline amendment." In notable contrast, I have received a number of e-mails from advocates of federal sentencing reform today (some of which I hope to soon reprint in this space) that assail DOJ for not advocating for complete retroactivity.
June 11, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (17) | TrackBack
Tuesday, June 10, 2014
DOJ advocates for "limited retroactivity of the pending drug guideline amendment"
As detailed in this prior post, today the US Sentencing Commission is conducting a public hearing to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive its new proposed guideline that reduces most drug sentences across the board. And though that hearing is on-going, the hearing agenda available here now has links to most of the witnesses' submitted written testimony, including the position advocated by the Department of Justice.
As detailed in this official DOJ press release and this written testimony via US Attorney Sally Yates, the Justice Department is urging the Commission to make the new reduced drug guidelines retroactive for some, but not all, prisoners now serving sentences under the old drug guidelines. Here are the basics of the compromise advocated by DOJ via its submitted testimony:
After extensive discussions and consideration of the various policy interests at stake in this matter – including public safety, individual justice for offenders, and public trust and confidence in the federal criminal justice system – we support limited retroactivity of the pending drug guideline amendment. As I will discuss further, we think such an approach strikes the right balance of policy interests and can be rigorously and effectively implemented across the federal criminal justice system within existing resource constraints....
Assessing whether the amendment should be applied retroactively requires balancing several factors. The primary factor driving our position to support retroactive application of the amendment, albeit limited retroactivity, is that the federal drug sentencing structure in place before the amendment resulted in unnecessarily long sentences for some offenders. While we believe finality in sentencing should remain the general rule, and with public safety our foremost goal, we also recognize that the sentences imposed for some drug defendants under the current sentencing guidelines are longer than necessary, and this creates a negative impact upon both the public's confidence in the criminal justice system and our prison resources....
Because of public safety concerns that arise from the release of dangerous drug offenders and from the diversion of resources necessary to process over 50,000 inmates, we believe retroactivity of the drug amendment should be limited to lower level, nonviolent drug offenders without significant criminal histories. Limited retroactivity will ensure that release decisions for eligible offenders are fully considered on a case-by-case basis as required, that sufficient supervision and monitoring of released offenders will be accomplished by probation officers, and that the public safety risks to the community are minimized. Release dates should not be pushed up for those offenders who pose a significant danger to the community; indeed, we believe certain dangerous offenders should be categorically prohibited from receiving the benefits of retroactivity....
Balancing all of these factors, the Department supports limited retroactive application of the 2014 drug guideline amendment. We urge the Commission to act consistently with public safety and limit the reach of retroactive application of the amendment only to those offenders who do not pose a significant public safety risk. The Commission has the authority to direct limited retroactivity under both 18 U.S.C. § 994(u) and Dillon, which provide authority to the Commission to prescribe the "circumstances" under which an amended guideline is applied retroactively. We believe the Commission should limit retroactive application to offenders in Criminal History Categories I and II who did not receive: (1) a mandatory minimum sentence for a firearms offense pursuant to 18 U.S.C. § 924(c); (2) an enhancement for possession of a dangerous weapon pursuant to §2D1.1(b)(1); (3) an enhancement for using, threatening, or directing the use of violence pursuant to §2D1.1(b)(2); (4) an enhancement for playing an aggravating role in the offense pursuant to §3B1.1; or (5) an enhancement for obstruction of justice or attempted obstruction of justice pursuant to §3C1.1.
With these limitations, all of which should have been determined in prior court action and should be documented in the court file in most cases, courts will be able to determine eligibility for retroactivity based solely on the existing record and without the need for transporting a defendant to court or holding any extensive fact finding. Retroactivity would be available to a class of non-violent offenders who have limited criminal history, did not possess or use a weapon, and thus will apply only to the category of drug offender who warrants a less severe sentence and who also poses the least risk of reoffending. While the factors we suggest are not a perfect proxy for dangerousness, they are a reasonable proxy based on the Commission's own research, and identifying them will not require new hearings.
Though I suspect the intriguing middle-ground position embraced here by DOJ will disappoint the usual suspects advocating fully against or fully for retroactivity, I view this DOJ proposal to be both politically and practically astute. In part because SO very many current federal prisoners may be eligible for a sentence reduction based on the new guidelines, I think it make sense (and is consistent with congressional policies and goals) for any retroactivity rule to seek to bring some equities into the application of the new law in an effort to ensure the most deserving of previously sentenced defendants get the benefit of the new guidelines. The DOJ position here seems thoughtfully designed to try to achieve that balance.
Some recent related posts:
- Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
- Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
June 10, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (15) | TrackBack
Monday, June 09, 2014
Big US Sentencing Commission hearing Tuesday on reduced drug guideline retroactivity
As reported in this official notice, a public hearing of the United States Sentencing Commission is scheduled for Tuesday, June 10, 2014, and the "purpose of the public hearing is for the Commission to gather testimony from invited witnesses concerning whether the Commission should designate as retroactive Amendment 782." That Amendment, in short form, reduces the guidelines applicable to drug trafficking offenses by two levels in most settings. And, as set forth in this detailed USSC staff analysis, as many as "51,141 offenders sentenced between October 1, 1991 and October 31, 2014, would be eligible to seek a reduction in their current sentence if the Commission were to make the 2014 drug guidelines amendment retroactive.
The hearing agenda and the list of the 16 witnesses scheduled now to testify at this hearing is available here. I am pretty confident that most of these witnesses will advocate that the new drug guidelines be made retroactive, but I am not entirely certain about what positions will be advocated by the Department of Justice and some of the law enforcement witnesses. In addition, advocates on both sides likely will articulate in different ways with distinct emphasis why they think retroactivity for these new reduced drug guidelines would be a good or bad idea.
I am hopeful that by this time tomorrow the written testimony to be submitted by the witnesses with be linked on the USSC's website. In the meantime, I will be re-reading this detailed USSC staff analysis in order to have a better understanding of the 50,000+ federal prisoners whose fates could be impacted by the retroactivity decision.
June 9, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7) | TrackBack
Tuesday, June 03, 2014
Commentary on drug guideline retroactivity asks "Who's Afraid of Too Much Justice?"
This notable new commentary in The Huffington Post by Megan Quattlebaum makes the case for the US Sentencing Commission to make fully retroactive its new guidelines amendment reducing most federal drug sentencing recommendations. Here are excerpts:
In a landmark decision, the United States Sentencing Commission voted last month to lower the recommended penalty for federal drug crimes by about 17 percent. As of now, the change will apply only to defendants who are sentenced after November 1, 2014. But the Commission is also exploring whether the reduction should be made retroactive, and it issued two reports two reports two reports (available here and here) analyzing that question last week.
Four things struck me as I read the reports. First, the Commission estimates that, if the changes were made retroactive, 51,141 individuals who are currently in prison (an incredible 23 percent of the total population) would be eligible to seek a reduction in their sentences. That a large number of people will be affected is not surprising -- almost half of all federal prisoners (48 percent) are incarcerated for drug crimes. But what is surprising is that even if all 51,141 were to get reduced sentences, we would have barely begun to bring the federal prison population down to pre-drug war levels. We incarcerated approximately 25,000 people in federal prisons in 1980. By 2013, that number had risen to over 219,000. As a result, the federal prison system is operating at 36 percent over capacity, costing taxpayers $6.4 billion per year and climbing....
Second, a significant percentage (about 25 percent) of the 51,141 potentially eligible for earlier release are non-citizens who may be subject to deportation. Many rightly question the wisdom of incarcerating large numbers of ultimately deportable non-citizens at taxpayer expense....
Third, the average age of an inmate who will be eligible for a sentence reduction is 38 years. In the universe of criminal justice, 38 is old. Researchers have consistently found that involvement in street crimes, like drug offenses, generally begins in the early teenage years, peaks in young adulthood, and dissipates before the individual turns 30. Explanations for this phenomenon are varied, but "[a] large body of research shows that desistance from crime... is... tied to the acquisition of meaningful bonds to conventional adult individuals and institutions, such as work, marriage and family..." These older offenders should have a low risk of recidivism generally. And the more that we can do to foster their re-engagement with their families and communities, the lower that risk will be.
Fourth, 20 percent of the individuals who may be eligible for earlier release come from one state: Texas. True, Texas is big and populous, but it's also punitive. The more heavily populated state of California only accounts for five percent of potential sentence reductions, while New York accounts for about four percent. Reading the charts that accompany the Sentencing Commission report is a statistical window into the American drug war, in which hang 'em high southern states feature prominently, if not proudly.
The Sentencing Commission is accepting public comments until July 7, 2014 on whether to make these changes to drug sentences retroactive. Some will no doubt argue against retroactivity, either out of fear that releasing individuals earlier will permit them re-offend sooner or out of concern for the serious workload that federal courts will have to take onin order to process so many applications for sentence reduction. But if we have revised our view of what constitutes a just sentence for a drug offense, then we cannot and should not justify continuing to incarcerate 51,141 people under an old, rejected understanding. We should never be afraid of too much justice.
I am grateful to see this thoughtful effort to dig into the US Sentencing Commission data concerning who could benefit from the new drug guidelines being made retroactive. And I think this commentary rightly highlights that the nationality status and the age profile of federal drug prisoners provide some important extra reasons for being comfortable with the new guidelines being made retroactive.
That said, the commentary about Texas justice and the state-by-state analysis strikes me a potentially a bit misguided. I suspect and fear that federal prosecution of drug crimes in Texas is higher than in other states not only because of the likely international dimensions to many drug crimes around the Mexican border but also because state drug laws in other states may be uniquely harsh. This commentary compares data from California and New York, but these two states have had a history of some notorious tough state sentencing laws (i.e., the Three Strikes Law in California, the Rockefeller Laws in NY). There may be so many federal drug prisoners from Texas not because state sentencing policies and practices are so tough, but because federal policies and practices relative to state norms are so much tougher and because local drug crimes are not really local along the border.
My point here is to highlight that state-by-state examination of federal drug sentencing patterns may reflect lots of distinct and dynamic factors. Notably, the Commission data indicate that about the same number of federal drug prisoners from Iowa will be impacted by retroactivity of the new drug guidelines as from Arkansas and Mississippi combined. These data alone hardly reveal the corn belt is the real "hang-em-high" center for the national drug war. Ultimaely, ever-changing local, state and national drug use and trafficking patterns along with dynamic prosecutorial policies and priorities likely better explain state-by-state federal prisoner data than any social or political conventional wisdom.
Some various somewhat recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
- US Sentencing Commission releases two significant research reports concerning drug sentencing reform and retroactivity
- New York Times op-ed spotlights enduring flaw with modern drug sentencing
- Gov Chris Christie talking up drug sentencing reform as a pro-life commitment
June 3, 2014 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3) | TrackBack
Monday, June 02, 2014
Tenth Circuit explains what's the matter with Kansas prior convictions as enhancers
Thanks to a helpful reader, I learned that today the Tenth Circuit handed down a significant opinion concerning the use of prior Kansas offenses in career offender guideline calculations in US v. Brooks, No. 13-3166 (10th Cir. June 2, 2014) (available here). Here is how the opinion in Books starts and ends:
Did Defendant Damian L. Brooks commit enough prior qualifying felonies to be considered a "career offender" under the Federal Sentencing Guidelines? The district court below said yes, relying on United States v. Hill, 539 F.3d 1213 (10th Cir. 2008), to classify a prior Kansas conviction of Defendant as a felony because it was punishable by more than one year in prison. On appeal, Defendant admits Hill mandates this classification. He argues, however, that Hill was abrogated by the Supreme Court in Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010). We agree. As such, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we reverse and remand for resentencing....
In conclusion, Hill — which looked to the hypothetical worst possible offender to determine whether a state offense was punishable by more than a year in prison — cannot stand in light of Carachuri-Rosendo. We now hold, in line with our pre-Hill precedent, that in determining whether a state offense was punishable by a certain amount of imprisonment, the maximum amount of prison time a particular defendant could have received controls, rather than the amount of time the worst imaginable recidivist could have received. As such, Defendant's prior Kansas conviction for eluding police is not a felony for purposes of U.S.S.G. § 4B1.1(a). The district court's imposition of a career offender enhancement was therefore in error and is REVERSED. This case is REMANDED for resentencing.
The helpful reader who alerted me to this opinion noted that "for those of us who deal with Kansas state convictions, it is (as Ron Burgundy would say), kind of a big deal." Here is part of this reader's explanation for why:
Previous 10th Circuit authority held that a conviction for a Kansas on grid "felony" was punishable by more than one year if a sentence more than one year could be imposed on any hypothetical defendant. That is, the analysis was not limited by a defendant's actual criminal history category on the state guidelines grid. If more than one year could be imposed for any criminal history category, the conviction = felony for purposes of federal law, even though a particular defendant may have only been exposed to a sentence less one year or less....
This ruling will impact multiple areas of federal prosecution and sentencing. For instance, if the high end of a defendant's KS gridbox is 12 months, then the conviction is not a disabling conviction for purposes of 18 USC 922(g)(1). Likewise, such a conviction would not be a predicate conviction for purposes of the Armed Career Criminal Act or the Career Offender guidelines enhancement.
A more limited effect will be that a few drug-grid convictions will not be a "prior drug felony" that can enhance a controlled substance offense under 21 USC 851.... Certain attempts/conspiracies/solicitations to commit drug crimes would also not be a federal felony for enhancement purposes.
Because I do not know how many federal sentencing cases are significantly impacted by how certain prior Kansas offenses are assessed, I cannot readily guess just how loudly this Brooks ruling might echo in other settings. But I do know that a similar type of ruling from the Fourth Circuit a few years ago concerning how North Carolina priors were to be treated has tied up a lot of federal courts in a lot of jurisprudential knots as they try to unwind the impact of "mis-assessed prior offenses." Consequently, I would advise court officials and federal practitioners in Kansas and perhaps throughout the Tenth Circuit to start reviewing and giving thought to what Brooks says and what it could mean for prior cases as well as future ones.
June 2, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1) | TrackBack


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The North Face Thermoball Hoodie
Where to Buy
Retailers' Descriptions
Here's what other sites are saying:
The North Face Women's Thermoball Hooded Insulated Jacket combines the protective qualities of synthetic with the lightweight loft of down. PrimaLoft's innovative ThermoBall insulation mimics down feathers in order to provide the warmth you'd feel in most 600-fill down jackets, and it protects you from moisture in the same way that quick-drying synthetic insulation is known for. Unlike most synthetic insulations however, ThermoBall makes this jacket so compressible that it can fit in its own pocket. When stowed, a carabiner loop clips to harnesses and backpacks for compact travel.
- Backcountry.com
For ultralight, cold-weather comfort, wear the women's ThermoBallTM Hoodie Jacket from The North Face. It's as warm and packable as down, yet insulates even when wet.
With a sleek new cut, The North Face Thermoball Hoodie still has the all-weather warmth of plentiful Primaloft insulation. Stylish enough for city outerwear and technical enough for mountain mid-layering, this piece has a place in your pack and closet, year-round.-- All-weather versatility in an insulated hoodie that's great for layering.-- PrimaLoft(R) offers the lightweight loft, warmth and compressibility of down with the wet-weather insulating performance of synthetics-- ThermoBall(TM) insulation throughout torso with 15D nylon ripstop fabric.-- Attached, elastic hood-- Secure-zip covered hand pockets-- Stowable-- Bluesign(R) approved fabric
- OMCgear
On Sale. Free Shipping. The North Face Women's ThermoBall Hoodie FEATURES of The North Face Women's Thermoball Hoodie All-weather versatility in an insulated hoodie that's great for layering 15D nylon ripstop with Thermoball insulation throughout torso to keep your core toasty warm The ThermoBall gives you the lightweight loft, warmth, and compressiblity of down but with the wet-weather insulating performance of synthetics. Man I sound so smart. Oh and y = mx + b, in case you were wondering. Redesigned with a sleeker silhouette, giving this a feminine shape and super cute style Attached elastic hood to keep your little ears warm during those blustery walks. Hey I sounded like Winnie the Pooh. Exposed molded-tooth center front zip adds some cool contrast in texture This ultralight zip-front layer is ideal for when you want to wear reliable thermal insulation in a nice range of winter conditions Secure-zip covered hand pockets because there is nothing worse than losing things out of your pockets Internal elastic cuff help keep the chilled air from creeping up your sleeves Hem cinch-cord allows you to customize how you would like the hem to fit, while also keeping the warm air in and the cold air out Easily stowable and packable for convenience SPECIFICATIONS of The North Face Women's Thermoball Hoodie Active fit Average Weight: 11.99 oz / 340 g Center Back Length: 26in. The body/lining is 15D 33 g/m2 (1.16 oz/yd2) 100% Polyester ripstop The insulation consists of 9.5 g/m2 Primaloft Thermoball synthetic insulation This product can only be shipped within the United States. Please don't hate us.
- Moosejaw
With insulating technology that keeps you toasty even when wet, the Thermoball women's hoodie insulated jacket from The North Face is a lightweight style with a flattering fit. The North Face Achieving phenomenal warmth in cold and wet weather, this hoodie features PrimaLoft ThermoBall technology-our new synthetic alternative to down. As compressible as down, the clusters of round synthetic Thermoball trap and retain heat within small air pockets to provide effective insulation, even when wet. Wear or pack this highly compressible, ultralight zip-front layer for reliable thermal insulation in a variety of winter conditions. Thermoball synthetic insulation has the warmth equivalent of 600-fill down. Bound cuffs and hood. Low-profile internal hem drawcord. Super-lightweight construction. Stow pocket. Three-color pop-trim zipper-pull detail. Bluesign approved fabric. Fabric body: 15D 33 g/m2 or 1.16 oz/yd2 100% nylon (bluesign approved fabric) / insulation: PrimaLoft ThermoBall. Avg Weight: 350 g or 12.35 oz. Length from Center Back: 26 in. Source: Imported. Guarantee: Lifetime Warranty. Available Color(s): TNF Black, Fanfare Green, Coastline Blue, TNF Black/TNF Black Floral, TNF Black/Curry Gold
- Tahoe Mountain Sports
The North Face Women's Thermoball Hoodie
currently retails for:
$149.93 - $219.95
$149.93 - $219.95

subset: commoncrawl


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Derby Telegraph has all the best restaurants in Derby and every type of restaurant in Derby listed, many with reviews and star ratings; you'll find Indian Restaurants, Chinese Restaurants, Italian Restaurants as well as other places to eat in Derby such as Pizza Parlours and Brasseries.
Why not list your Derby Restaurant business on Derby Telegraph ?
Address: 174-175 Station Street, , BURTON ON TRENT, DE14 1BN
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Address: New Street, , BURTON ON TRENT, DE14 3QN
Address: 22 Town Street, Duffield, , Belper, DE56 4EH
Address: 19 Causeway Lane, , MATLOCK, DE4 3AR
Address: 446 Nottingham Road, Chaddesden, Derby, DE21 6PD
Address: 32a Broadway Business Centre, , Nottingham, NG1 1HL
Address: 258-260 Dale Road, , Matlock Bath, Matlock, DE4 3NT
Address: Station Road, Mickleover, Derby, DE3 9FB
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Address: 54, Friar Gate, , Derby, DE1 1DF
Address: 12a Burrnett Road, Little Aston, Sutton Coldfield, B74 3EJ
Address: 28 Lichfield Road, , SUTTON COLDFIELD, B74 2NJ
Address: 8-9 Midland Road, , Derby, DE1 2SN


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Serpentshrine Cavern image requestsTalk0
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GMC Q&AAsk Your Question
All 2006 GMC Envoy questions
I have no low beam lights all of the other lights work. What could it be?
Check engine light ccar will shut off & when started it idles rough
The check engine light is on and will start to flash then the car stalls out. When restarted it i...
the back of the truck is low, and when i turn left it makes a noise and is bouncy
Is it possible to damage front differential within an hour of driving in 4 high
Had the vehicle for exactly 6 days i have been the only driver i know I didn't drive in 4 hig...
Sometimes, when I shift from 2wheel drive to 4wheel drive the transmission won't shift. Is that a sensor?
When I shift my transmition from 2wheel drive into 4wheel drive the light indicates the shift, but it remains in 2wheel drive. Other-wise the transmition is fine. How can this be corrected?
Won't shift...
When I shift my transmition from 2wheel drive into 4wheel drive;
The indicator light shows the shift, but it remains in 2wheel drive. What should I do to correct it?
How do you change oil pressure sensor 2004 gmc envoy
Floor gear shift moves, but the dash gear remains in park and truck wont move.
What could be the problem? And, approximately how much to fix?
Oil Pressure Pegged at 80
The oil pressure guage is pegged at 80, even with the engine off. Is this just a sensor issue, o...
I did a tuneup on February,2013 how long before I do another tuneup.
What is causing a very annoying hum coming from the rear passenger side speaker.
The hum occurs at various times and may not occur for several days then start up out of the clear...
gear shift went up like it was in park but it is still in drive.
The dashboard also shows still in drive.
where is the resistor block for the 2006 GMC Envoy with the 4.2L V-6 located?
I have checked all the fuses and relays for the blower motor and now I'm going to try the res...
How do I remove the A/C compressor in a 2006 GMC Envoy with a 5.3L V8 engine?
I am in the process of removing the A/C compressor, which went bad. I was able to get to the two...
This week's top 10
|1 stevieray1
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|10 wrayauto


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So horribly funny, why do I feel like crying? LOL
Comment #134 by - thecrotchetyoldcynic
LoL - by Greeny
Lana Parilla - the #1 reason to watch this show. It's actually a decent show, but Lana is too beautiful to NOT watch - by Silverheart
Thanks, miss priss. - by thecrotchetyoldcynic
As always, 5L piece of work crotchety! - by MissPriss
Crotchety.. a lot of work went into this...post over at remake too! Posters don't have to be limited to 1 site. Nice work! - by MissPriss
I know Da Vinci was many 5L things...but a plumber? Plumber. Crack. Never mind, loses something in the translation. - by MissPriss
The Devil Steals Pradas...sequel to the Devil Wears Pradas, or somethin' like that. - by MissPriss
Dammit crotchety...made me soak my depends! 5L soaker it was too! - by MissPriss
That is sooooo my Sassy dog. She must be part cat cuz I'm certain she died the day they imploded the bridge in town! - by MissPriss
Not at all crotchety...you've never driven with my mother! - by MissPriss


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Ballout & Tadoe
Rise of the GloGang Empire
Even the most casual observer of TMT will notice that Chief Keef is kinda a big name round these parts, and this extends to pretty much everything else the guy's involved in. It was Almighty's cousin Matti BayBee who previously received some love in February's mixtape column, and now we cast our gaze towards GloGang members Ballout and Tadoe, who just popped off their new project/tape/album/whatever Rise of the GloGang Empire. Precious little info out there on this one, but in all honestly it hardly needs much explanation: these 10 joints of bass-inflicted bangers, replete with disorientated free verse and plentiful usage of machine gun ad-libs, do the talking pretty damn nicely. Sosa himself checks in on the previously released "All Me", and even Yung Lean turns in a tidy verse on the closing number; it's all in a days work for this most bounteous of link-ups. The Empire has well and truly risen. Peep:
• Ballout: https://twitter.com/balloutglooo
• Tadoe: http://www.tadoedasavage.com
• GloGang: http://glogangworldwide.com
"Will (One Machine)"
Jungled in a mechanical world, running for your life seems more dangerous of a choice than hiding in the shadows, but the choice of running was the most immediate thought, getting chased by camera drones through alley-ways, feet burning from the arches on up, and sweat blinding any chance of visual direction. Puddles splashing upon the Rejections, robotic trash barely kicking, abandoned by building sides and flashing sparks when water hits their exposed wires, taking refuge next to one under an aluminum canopy from an almost-lost task-force of drones. It looks like it's trying to restore itself as the drones encircle the area and chatter in clicks of measurement that sounds almost musical. Their whirling blades keeping them afloat while polluting the already noisy sound waves. Only to get caught when the refugee robot repairs itself, walks out from under the canopy, and beings talking to you about how happy it is to have fixed itself. "Will (One Machine)" beholds your future below:
• Reject and Fade: https://rejectandfade.bandcamp.com
Drink More Water 5
It's time. The serotonin sprinkler, maneuvering master, and trench coat mobber known sometimes as Super Chef Makonnen, sometimes as the Man of the Party, and currently as The Red Dragon has pulled up on the scene with his latest mixtape, Drink More Water 5. The tape is a stopgap of sorts before his debut studio release, which is due later this year. Sure, that one'll feature Drake, Rihanna, DJ Mustard, Diplo, and Skrillex, but will it make your skin glow like this one?
✔ Hydrate
✔ Hydrate
✔ Hydrate:
Always on deck and never out of work, that Makonnen fellow. Check out his upcoming dates with Sonny Digital and Key! here.
• iLoveMakonnen: http://www.ilovemakonnen.com
Life Size Maps
"All Been Spent"
There will be no shortage of genres/sub-genres and songwriters, the latter many of whom will belong to 'Generation Y' or whatever/after, that will make the ascension and eventual dominance of mass media in the late 20th and early 21st centuries a major thematic concern or at least inspiration around which their music revolves, attempting to come to terms with, or at least begin to grapple with the development or ongoing process of how the Internet, especially, has affected the social, political, economic, and also personal and emotional particulars of their lives growing up in such a time.
The long-active Bushwick-based synthpop foursome led by frontman Mike McKeever, Life Size Maps, is one such outlet for this increasingly popular – and relevant – phenomenon, but they just might be one of the more interesting ones, in terms of their unique musical, lyrical, and visual approach to the subject matter. After having put out a string of shorter-length releases, including a number of singles, the band has finally completed a long-in-the-works debut album, due to be released on April 7th, through Old Flame Records. The whole thing just became available for streaming through Spotify, though if you need something to feast your eyes on, check out the recently released video for "All Been Spent," directed by none other than Lil Internet, who also helped out for some of the art direction this time around, or look up their tour dates, available on their official website.
Oh, the bonus is getting to listen to Life Size Maps via Spotify:
• Life Size Maps: http://www.lifesizemaps.com
• Old Flame Records: http://www.oldflamerecords.com
Zachary Devereux Fairbrother
"The Strawman"
One-half of Canadian-Philly duoLantern, Zachary Devereux Fairbrother goes from his typical face-punching rippers to a soft-acoustic ballad with "The Strawman." I mean, the dude HAS gone a BIT soft before, but this was during a self-admitted time when he was away from the other half of Lantern, Emily Robb. Thus, when I got Zachary's e-mail promoting "The Strawman" outta nowhere the other day, I was like "Uhhhh-ohhhh." BUT I'M TOTALLY WRONG! Look how cute the cover art is for "The Strawman" single. And the lyrics pretty much describe the process of me writing about the song. It's all about interpretation. And potentially, his lyrics of "YOU" can be read into as himself, or Emily, or just [musician/artist/person/YOU].
There's an sneaky inspiration in Zachary's "The Strawman" that's not secretive, but only found upon close listening. No, I'm not talking about inspiration to go out and learn "Classical Gas" on guitar, but if you do, RESPECT. However, "The Strawman" suggests you should challenge what people say in reaction to how you present yourself within this world. Will you choose the way of social molding, or go for the Fleetwood Mac? I'd rather take the Lantern route and have beer cans thrown at me as an honor than be playing some sold-out arena concert to people who own iPods with five of my songs. As well, the whole Tyrannosaurs Rex vibe Zachary is fronting with "The Strawman" currently is illy af too, so let's hope both this solo project and Lantern continue strong. Check out his solo work below, for judgement's sake:
• Zachary Devereux Fairbrother: https://soundcloud.com/zacharyfairbrother