The attached chart below outlines Federal sentencing changes for drug offenses under the First Step Act: Click link below to view larger version: FSA_Changes

Please see the attached opinion in United States v. Begay, in which the Ninth Circuit held that second degree murder under 18 U.S.C. 1111(c) is a crime of violence under the elements clause of 924(c)(3)(A) because it is unlawful killing with malice aforethought, meaning deliberately or recklessly with extreme disregard for human life. Thus, the Circuit endorsed different degrees of …

Written by: Frank Draper Dear Defender Nation, The fight against capital punishment in the United States continues. Through our dauntless advocacy, we are seeing fewer defendants sentenced to death and even fewer executions than we have seen in a long time.  In 2020, the pandemic, racial justice movement, and election of reform minded prosecutors helped fuel a continuing decline in …

Judge Friedland wades through a nice factual analysis in United States v. Valle, and comes out the right way on a guideline enhancement in an illegal reentry case: a good result. Of much broader interest, however, is Judge Friedland’s insistence that that the government shoulder the “clear and convincing” standard of proof for this guideline enhancement, instead of a mere “preponderance …

The majority decision in United States v. Begay is written by Judge D.W. Nelson. In a thoughtful analysis, she explains why federal second-degree murder is not a crime of violence, supporting a Section 924(c) charge. It is a great opinion, and an important victory for AFPD Edie Cunningham, D. Arizona FPD – congratulations due on this big win. Re: United States v. Begay, 2019 WL 3884261 …

Bottinelli et al v. Salazar, No. 19-35201 (7-15-19)(Owens w/Fernandez & Graber).  The 9th holds that the First Step’s “good time” credit amendment does not take immediate effect upon enactment, but becomes effective with the establishment of the First Step’s “risk and needs assessment system” on July 19, 2019. The petitioner had argued on appeal that the First Step’s amendment to “good …

The 9th held that Washington second-degree murder (felony murder) does not qualify as a crime of violence since it is overbroad and indivisible and rejected the Government’s argument, raised for the first time on appeal, that second-degree murder qualifies under the force clause given that Washington law imposes liability for negligent or even accidental felony murder. It also held that …

In January 2019, the Commission issued a report, Mandatory Minimum Penalties for Sex Offenses in the Federal Criminal Justice System, highlighting recent trends in the charging of federal sexual abuse and child pornography offenses. This publication is the sixth and final in a series of new reports building on the Commission’s 2011 report to the Congress on mandatory minimum penalties. …

After a lousy week for federal employees it is a pleasure to be writing with some particularly good news: United States v. Valencia-Mendoza. This is a huge case. The narrow holding is that a particular Washington state prior doesn’t count in that case to increase an illegal reentry sentence under the guidelines. The much bigger implications, however, are for the general …

1.        US v. Landeros, No. 17-10217 (1-11-19)(Berzon w/Rawlinson & Watford).  The 9th reverses denial of a suppression motion.  The 9th holds that a police cannot extend a lawfully initiated car stop because a passenger refuses to identify himself, absent a reasonable suspicion that the person has committed a criminal offense. The 9th recognizes that Rodriguez, 135 S. Ct 1609 (2015) abrogates previous 9th Circuit, US …

A 2nd Circuit Court jury found criminal defense attorney Cary Virtue’s client not guilty of attempted second-degree murder. The case was presided by Judge Peter Cahill. The incident occurred shortly after midnight New Year’s Day 2017. The 55-year old defendant had an argument with his then-girlfriend (now-wife) and left her Harbor Lights apartment. He took his backpack and planned to …

The Ninth ponders a Washington state conspiracy statute, where a defendant can be found guilty for conspiring with a cop. “Not a generic fit,” explains Judge Clifton in a welcome decision. The opinion and the COTW memo ends with Judge Owens’ concurrence. He’s had his fill of the Taylor analysis, and calls for the approach to be scrapped. Maybe we …

Members of the federal judiciary, federal court practitioners, law professors, and law librarians: Below is a link for the latest quarter’s edition of the Postconviction Remedies Note, a legal publication summarizing important federal habeas corpus decisions and discussing new developments in the area of federal postconviction remedies. If there is someone whom you would like to receive this publication, please …

We just came across an interesting article about how family members of a client facing trial can be an excellent source for building a case. Read this article on how a prisoners’ family members can help: Family Members Can Assist Overworked Public Defenders – The Atlantic

The central mission of the Federal Bureau of Prisons is to support a successful transition into the community for federal inmates. By doing so, the Bureau protects public safety by making sure inmates receive programming to help them make a successful reentry into the community. The Bureau offers national programs that are standardized across all institutions. The programs are implemented …

The Supreme Court held today in Welch v. United States, No. 15-6418 that the rule announced in Johnson is substantive and thus retroactive, 7-1, Justice Kennedy writing the opinion and Justice Thomas the lone dissent. See

On May 13, 2015, attorney Cary Virtue attended the National Association of Criminal Defense Lawyers all-day seminar on federal Criminal Conspiracy laws in New York City.