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Articles by Dale Chappell

Fifth Circuit: Safety Valve Isn’t Up to the Government


by Dale Chappell

The U.S. Court of Appeals for the Fifth Circuit held on August 21, 2020, that it’s not up to the Government to determine whether a defendant qualifies for a reduced sentence under the safety valve provisions of 18 U.S.C. § 3553(f). Instead, the Court reminded, it is up to the district court to make that decision based on evidence and not mere speculation by the Government.

Yuniel Lima-Rivero pleaded guilty to conspiracy to possess methamphetamine with intent to distribute under 18 U.S.C. § 856 and was sentenced to 15 years in federal prison without parole.

At sentencing, the U.S. District Court for the Northern District of Texas rejected Lima-Rivero’s request for application of the safety valve allowing a lower sentence. The Government argued that he failed to qualify for the safety valve because he did not truthfully provide all information known about the offense. Indeed, at sentencing, a DEA agent testified that Lima-Rivero was “less than forthcoming regarding many things.”

The district judge said, “I think it’s up to the government to determine if the defendant has complied with” the safety valve provisions. “I don’t know how you get around that,” the judge said and denied ...

Third Circuit Announces Resentencing Under First Step Act Requires Use of § 3553(a) Factors

by Dale Chappell

The U.S. Court of Appeals for the Third Circuit held on September 15, 2020, that when a district court determines that a person is eligible for sentencing relief under the First Step Act, the court must consider all the applicable sentencing factors under 18 U.S.C. § 3553(a), even if the new Guidelines range is the same as the old range.

After the U.S. District Court for the Middle District of Pennsylvania found that Jamel Easter qualified for sentencing relief under the First Step Act, it recalculated his Guidelines sentencing range (“GSR”), found that it didn’t change after applying the new law, and refused to go any lower. Easter was convicted of a crack cocaine offense in 2008, under 21 U.S.C. § 841(a), (b)(1)(B), and a consecutive sentence under 18 U.S.C. 924(c) for possessing a firearm in furtherance of that drug offense.

Originally sentenced to a total of 19 years (14 for the drugs and five for the firearm), Easter got a reduction in 2015 when Amendment 782 reduced his crack cocaine offense level by two points. His sentence was reduced to just over 16 years total with the reduction. When the First Step Act made the Fair ...

Second Circuit Announces Compassionate Release Motion by Prisoner Not Constrained by Outdated Guideline § 1B1.13, Application Note 1(D)

by Dale Chappell

The U.S. Court of Appeals for the Second Circuit held on September 25, 2020, that the outdated compassionate release guideline under U.S. Sentencing Guidelines Manual § 1B1.13, Application Note 1(D) (“Application Note 1(D)”), doesn’t control when a compassionate release motion is filed by a federal prisoner, rather than the warden.

When Jeremy Zullo was sentenced a decade ago, the sentencing judge said, “it’s difficult for me to sentence somebody like you to 10 years in prison frankly.” The judge recognized that such a long sentence didn’t fit Zullo’s drug and firearm conviction with his clean criminal history but was obligated to impose at least 10 years, giving him 10 and a half years. The Government then appealed that sentence, and on remand, the judge was ordered to hand Zullo a five-year mandatory sentence in addition to the mandatory 10-year sentence for a total of 15 years in prison without parole.

After the First Step Act passed in 2018, opening the door for prisoners to file for compassionate release when the federal Bureau of Prisons (“BOP”) refuses to do so, Zullo filed a motion under 18 U.S.C. § 3582, giving the sentencing judge a chance to reduce his ...

Oregon Decriminalizes Heroin, Cocaine, Meth, and Other Drugs

by Dale Chappell

Yes, it’s true: Oregon voted to decriminalize personal possession of recreational drugs, including heroin, cocaine, methamphetamine, and others this past Election Day. It’s an effort to stop “penalizing addiction,” the new law says, and to focus on treatment instead of jail for addicts.

Known on the ballot ...

Attacking the Guilty Plea: Waivers, Breaches, and Getting More Time After a Successful Challenge

Waivers in Plea Agreements

Over 67 percent of plea agreements in 2015 had waivers, and these waivers are usually boilerplate language that the government uses in all of its agreements. Rarely are these waivers negotiated by defense counsel, and they’re so common that defendants often accept them as a necessary evil to pleading guilty.

But a defendant can’t just waive his rights without having notice of those rights. In United States v. Chua, 349 F. Supp. 3d 214 (E.D.N.Y. 2018), Judge Jack Weinstein criticized the government for using a “blanket” waiver barring a defendant’s right to challenge his guilty plea or sentence, without listing the rights he would be waiving. The judge “amended” the waiver to address each of the rights the defendant had that he would be waiving (or not waiving).

Any waiver ...

Powerful New Tool Reveals Federal Sentencing Problems

The ground-breaking service is a first of its kind and has been an eye-opener about what’s really going on in federal sentencing.

This new tool is called JUSTFAIR (Judicial System Transparency Through Federal Archive Inferred Records), and it was developed by the Institute for the Quantitative Study of Inclusion, Diversity, and Equity (“QSIDE”) in Williamstown, Massachusetts. It’s a collection of nearly 600,000 records on federal sentencing gathered from several public sources and then refined to provide important sentencing data that couldn’t have been found in just one place before. It links information about defendant demographics, their crimes and sentences, and – most importantly – details about the judges who imposed the sentences. 

It’s the first large-scale database that links all of this information – and it’s free. While the U.S. Supreme Court held in Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), that “the First Amendment guarantees of free speech and press ... prohibit the government from summarily closing courtroom doors,” the government has made it nearly impossible for the public to see what does go on ...

Sixth Circuit Finds IAC for Failure to Raise ‘Clearly Foreshadowed’ Change in Law on Appeal

Freddie Chase was convicted and sentenced in a Michigan state court in 2013 to a mandatory term of imprisonment based on facts found not by a jury (or admitted by him) but by his sentencing judge. Under state law at the time, a judge was required to impose a longer sentence under the Michigan sentencing guidelines and could not depart from that range absent “a substantial and compelling reason.” Mich. Comp. Laws § 769.34(3).

Three days after Chase’s sentencing, the U.S. Supreme Court held in Alleyne v. United States, 570 U.S. 99 (2013), that a law requiring a mandatory minimum sentence based on judge-found facts violates the U.S. Constitution. Because Chase’s sentence was on direct appeal when Alleyne was decided, the new rule applied retroactively to his case. Griffith v. Kentucky, 479 U.S. 314 (1987).

But Chase’s appellate lawyer never raised an ...

Ninth Circuit: Use of Unconvicted Conduct Too Dissimilar to Charged Offense Violates Due Process

Martin James Kipp was arrested in January 1984 and charged with the rape and murder of Antaya Howard in Huntington Beach, California. The State also alleged a “special circumstance” that Kipp intended to murder Howard during the rape. He took his case to trial, and the prosecution introduced evidence of another rape and murder it alleged Kipp also committed. Even though Kipp was not convicted of that other crime, the prosecution was allowed to offer the jury all the evidence of that offense to show Kipp’s propensity to commit such a crime.

The other crime was the rape and murder of Tiffany Frizzell, who was found dead in September 1983 in her hotel room in Long Beach. The cause of death was strangulation, and there was evidence of a sexual assault. Kipp’s fingerprints were found in her hotel room. Howard was also strangled. Sexual assault was presumed, but no evidence ...

Fifth Circuit Grants Habeas Relief Because Detective’s Testimony of Witness Identification of Defendant Violates Confrontation Clause

The crime was a robbery during which Justin Atkins and Lawrence Horton allegedly beat and robbed a man after he cashed a check. Horton later went to the police and told them Atkins did the crime and that he was merely a lookout. Both were arrested, and Atkins was eventually convicted by a jury of robbery and aggravated battery.

The conviction came after a Louisiana state prosecutor asked the detective on the stand before the jury: “Did you in fact speak with Lawrence Horton?” The detective said he did, and the prosecutor asked if Horton had implicated anyone in the crime. “Based on the information he provided I was able to obtain a warrant. Q: For whom? A: Justin Atkins.”

After Atkins’ appeals were exhausted, he made his way through the postconviction process in the state courts. He was rejected at every step. Filing ...

Arizona Supreme Court Declares Gang-Association Statute Unconstitutional

In two separate incidents, Christopher Arevalo allegedly verbally threatened someone and was charged with two counts of threatening or intimidating someone under A.R.S. § 13-1202(B)(2). Normally, such a charge would be a misdemeanor under Arizona law, but it was further alleged that Arevalo was a gang member. As such, the charges were automatically bumped up to felonies.

Arevalo moved in the trial court to dismiss the charges or to at least reduce them to misdemeanors, arguing that the gang-association enhancement under the statute making them felonies is unconstitutional. The court agreed and dismissed the charges, holding that § 13-1202(B)(2) violates due process by punishing someone for associating with a gang.

The State appealed and won. The court of appeals held that § 13-1202(B)(2) “does not penalize mere membership in a criminal street gang — it penalizes the added menace inflicted when a criminal street gang member is engaged in criminal ...



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