by Dale Chappell

The Supreme Court of Arizona held on September 1, 2020, that a statute increasing a misdemeanor charge to a felony for merely being part of a gang is unconstitutional on its face as a violation of substantive due process, affirming a trial court’s dismissal of the charges.

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 ...

by Dale Chappell

The U.S. Court of Appeals for the First Circuit held on August 3, 2020, that the U.S. District Court for the District of Puerto Rico’s focus on the dangerousness of machine guns and their link to brutal crimes in general are not permissible reasons to impose a sentence above what the Guidelines recommend for a defendant.

When Julian River-Berrios was seen with a federal fugitive in Puerto Rico, he was arrested for being a felon in possession of a firearm and for that possession being a “machine gun” under 18 U.S.C. §§ 922(g)(1) and (922)(o)(1). When the Government realized he wasn’t a felon, it had to drop the felon in possession charge, and Rivera-Berrios then pleaded guilty to possessing the machine gun.

The presentence report established that Rivera-Berrios was a first-time offender and that the U.S. Sentencing Guidelines range (“GSR”) for his offense was two- to two-and-a-half years in prison. The Government recommended a sentence at the bottom of that range.

Instead, the district court gave a speech about guns and violence in Puerto Rico and imposed a three-and-a-half year sentence. The court noted that “modern machine guns can fire more than one thousand rounds a minute ...

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit expanded the First Step Act’s “covered offense” for crack cocaine sentence reductions to include all of the federal statute penalizing crack cocaine offenses, even if the change would not affect the penalty range for a particular offense. As a result, all three provisions penalizing crack cocaine are included under the First Step Act, regardless of the drug amount.

In 2009, Albert Woodson was sentenced to just under 13 years in federal prison for distributing 0.41 grams of crack cocaine. When the First Step Act was passed, he filed for retroactive application of the Fair Sentencing Act of 2010 (“FSA of 2010”), which lowered the threshold for crack sentences for each provision of 21 U.S.C. § 841(b)(1). However, the U.S. District Court for the Northern District of West Virginia ruled that since Woodson’s sentence was under § 841(b)(1)(C) and would have remained under the same penalty range, he didn’t qualify under the First Step Act.

On appeal, Woodson argued that the First Step Act modifies § 841(b)(1)(C), and his offense is thus a “covered offense” to qualify under the First Step Act. The Fourth Circuit agreed. Under 21 U.S.C. ...

by Dale Chappell

With the countless ways the government can collect data on you, the Electronic Frontier Foundation (“EFF”) has introduced three new tools to help you identify what technologies are being used by government agencies to watch you. The tools are free to use and do not collect any ...

by Dale Chappell

In 2017, the U.S. Supreme Court overturned the death sentence of Duane Buck, a Black man who was painted by an expert at trial as more dangerous and deserved to die simply because he was Black. The Court held that “some toxins can be deadly in small ...

by Dale Chappell

Touted as a convenient way to monitor who’s at your front door, internet-enabled doorbell cameras send alerts to users’ cellphones where they can view the camera footage in real-time from a remote location. It’s a great way to record and report suspected activity, the device makers say. ...

 by Dale Chappell

For the first time since 1862, the U.S. Supreme Court has decided a record low number of regular-docket cases – just 52. But that doesn’t mean the highest court in the land wasn’t busy. In fact, it was busier than ever, handing down decisions under the cover of night (sometimes literally) and without any public knowledge or input.

It’s what University of Chicago law professor Will Baud calls the Court’s “shadow docket,” and these aren’t cases left over from an earlier term or from the Court’s normal docket. Instead, these are cases where the Court barely gets any briefing from the parties (and usually the government is a party) and never hears oral argument. Often the decisions are only a sentence long, but their impact is great.

It’s true that the Court decides thousands of cases outside it’s normal “merits docket,” i.e., the docket that the public knows about, and they’re often unimportant decisions. But some cases are groundbreaking. Consider this fact. During the weeks between the beginning of July and the first week of August, Slate.com reports that the Court handed down the following big decisions without any fanfare:

• It paved the way for the ...

by Dale Chappell

The Court of Appeal of California, Third Appellate District, granted habeas relief on April 3, 2020, in a case where appellate counsel failed to request a jury instruction that could have led to a lesser included conviction, requiring the vacatur of a murder conviction.

Jonathan Hampton filed his appeals and at least two habeas corpus petitions in state court after his 2009 conviction for second-degree murder. He was found guilty by a jury of shooting and killing someone during a drug deal gone bad. While the facts of how the shooting happened were unclear, Hampton testified at his trial that he was trying to escape from a man holding a gun to his head who was robbing him. He said when the gun landed in his lap and the man lunged for him, he shot him “without thinking.” He feared for his life, he said.

Instead of first-degree murder, the jury found him guilty of second-degree murder. The issue in Hampton’s third habeas petition was whether his appellate lawyer was ineffective for failing to challenge that the trial court was required to give the jury a “heat of passion” instruction, which could have allowed a conviction for ...

by Dale Chappell

The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding the guilty plea is at when the motion to withdraw is filed. The phases are: (1) prior to it being accepted by the court, (2) after acceptance but before sentencing, and (3) after sentencing. Each phase requires meeting a different standard in order to withdraw a guilty plea. So far, the columns in this series have described challenges to a guilty plea after sentencing in the post-conviction setting. While that’s the most common arena for prisoners, an understanding of the other two phases will help support a later challenge to a guilty plea by asserting an ineffective assistance of counsel (“IAC”) claim with respect to a guilty plea.

The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11. A “research alert” (as I call it) to be aware of is that withdrawing a guilty plea was also previously governed by Criminal Rule 32(e), but everything was moved to Rule 11, when that rule was amended in 2002 in significant ways. So check the dates of the cases ...

by Dale Chappell

The U.S. Court of Appeals for the Fourth Circuit ruled that a prisoner immediately released under the First Step Act of 2018 could not “bank” the extra time spent in prison toward a future prison sentence imposed in the event of a supervised release revocation.

While the Court’s decision wasn’t a “win” for the prisoner, it provides a glimpse into the Court’s reasoning of how it treats prisoners immediately released who have served too much time in prison.

Ronald Jackson was not the first prisoner released under a change in the law who had spent more time in prison than he should have, but his case was used by the Fourth Circuit to explain its position on what to do with the extra time such prisoners spent in prison when imposing a “time-served” sentence to allow release. Jackson was sentenced 15 years ago for conspiracy to distribute more than 50 grams of crack. Because he had a prior drug conviction, the Government filed a notice requiring the court to impose at least 20 years in federal prison without parole.

Jackson filed a motion in 2019 under the First Step Act that retroactively applied the Fair Sentencing Act ...