Greer v. United States, __S.Ct.__, 2021 WL 2405146 (2021) Short story: A defendant convicted of being a felon-in-possession of a firearm under 18 U.S.C. § 922(g) after the Supreme Court’s 2019 decision in Rehaif v. United States is not entitled to a new trial or plea hearing unless he “makes a sufficient argument or representation on appeal that he would have presented evidence at trial that he did not in fact know he was a felon.” Longer story: In 2019’s Rehaif, the Supreme Court held that a felon-in-possession conviction requires not only the defendant’s knowledge that he possessed a gun, but also that he knew he had the legal status of a convicted felon. Because Rehaif applied to every federal felon-in-possession conviction not yet final as of the date of that decision, the question became whether some or all of those cases needed to be sent back for new pleas or trials—i.e. would it have made any difference in the result had the parties and court known at the time that the government was required to prove knowledge of felon status? Appellate courts varied in handling such challenges, from looking beyond the trial record to the larger “district court” record in a search for evidence demonstrating that the defendant knew of his felon status (like a PSR or the indictment), to a “structural error” approach that essentially guarantees a new hearing in all cases. (All the justices in Greer agreed that the structural error route was a no-go). Kavanaugh wrote for the Court which held that neither Gregory Greer nor Michael Andrew Gary (companion case) had carried their burden of showing a “reasonable probability” that they would not have been convicted had the rule of Rehaif been observed in their cases. Kavanaugh tried to employ what he considered a “common sense” approach: “if a defendant was in fact a felon, it will be difficult for him to carry the burden on plain-error review of showing a ‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court proceedings would have been different.” Both Greer and Gary had been convicted of multiple offenses qualifying as felonies under Section 922(g), which by itself constitutes “substantial evidence” that they knew they were felons. Moreover, neither of them argued or made a representation on appeal that they would have presented evidence at trial that they did not, in fact, realize that they were felons. Sotomayor joined the court in Greer but dissented in Gary, saying that she would have remanded the latter case to allow the lower courts to rule in the first instance whether Gary satisfied the majority’s articulated standard. She also listed several reasons a defendant might not know a prior conviction was a felony for federal purposes. At the risk of being overly-lengthy, I’m including here the practice pointers from the Sentencing Resource Counsel, which might be useful for you to preserve the issues well: 1. Supplement your record on appeal. Citing Federal Rules of Appellate Procedure 10(e), the Supreme Court invites appellate defenders to supplement the appellate record with new evidence to support their plain error arguments on appeal. See, e.g., Slip Op. at 5, 10, Sotomayor at 6 n. 1. That’s right. Perhaps as consolation for saying courts could look at the whole record to answer an evidentiary question that was never litigated below, the Court invites us to submit new evidence on appeal that bears on that question. Justice Sotomayor suggests that might include corrections to the PSR that did not matter before Rehaif, evidence of mental illness, or the fact that a prior court erroneously described the consequences of conviction. Query whether the government also gets to submit evidence. But note: I read nothing here to suggest the government gets to submit extra-record evidence in the normal course of appeals to shore up its undeveloped evidentiary record. 2. Object, object, object. The moral of both these stories is, FRCrP Rule 51, 52 require us to object to things even when it feels like we’re just howling at the moon. I mean, we need preserve things we have long lost hope will ever prevail. Think: felons, et al. have 2nd amendment right to bear arms; 922 firearm transported in interstate commerce requirement is insufficient to support federal jurisdiction; charging someone with felon in possession/domestic violence misdemeanor violates double jeopardy because the prior conviction is a lesser included offense; charging someone federally after state conviction/acquittal for same conduct violates double jeopardy; Almendarez-Torres should be overruled; Whren should be overruled; our client must know drug-type/quantity to trigger mandatory minimum; consideration of acquitted conduct at sentencing is unconstitutional after Rita; you get the picture. Not only has the Supreme Court told us we need to do this to protect our clients’ rights, but if we do our jobs well enough, and especially before judges who sit on the Rules Committee, maybe we can get them to amend those rules! If you need other ideas, please see NAFD’s amicus brief in Gary, which details what will happen if the SC requires us to make objections even against a solid wall of circuit authority. Terry v. United States, __F.3d__, 2021 WL 2405145 (2021) Short story: People convicted of certain low-level crack-cocaine offenses are not eligible for sentencing reductions under the First Step Act. Longer story: This one is only saved by the fact that there’s some legislative momentum and hopefully Sotomayor’s vision in concurrence will become a reality (DOJ apparently agrees with the pending legislation, aka the EQUAL Act). The cocaine/crack disparity should not have existed and getting the Court and Congress to right the wrongs of the racist War on Drugs is like pulling teeth. My god. Justice Thomas wrote for everyone except Sotomayor who concurred (and she accused Thomas and the rest of the Court for whitewashing the realities of the disparities--“Black people bore the brunt of this disparity”). Tarahrick Terry was arrested in Florida for carrying just under 4 grams of crack cocaine. This was in 2008, when the law treated offenses involving crack much more harshly than those involving powder cocaine. 21 USC § 841 created three tiers. Tier 1 imposed a 10-year mandatory minimum sentence for offenses involving at least 50 grams of crack or 5 kilograms of powder. Tier 2 imposed a 5-year mandatory minimum for offenses involving at least 5 grams of crack or 500 grams of powder. Tier 3 penalized offenses involving an unspecified amount of cocaine and did not include a mandatory minimum. Terry was convicted under Tier 3 and was sentenced to more than 15 years in prison. Two years later, Congress passed the Fair Sentencing Act, which reduced the sentencing disparity between crack and powder cocaine. And in 2018, Congress passed the First Step Act, which made certain provisions of the Fair Sentencing Act retroactive and allowed some people convicted under the old regime to seek reduced sentences. Terry argued that he was entitled under the First Step Act to seek a sentencing reduction. The Supreme Court disagreed. Although Tier 1 and Tier 2 (841(b)(1)(A) & (B)) are “covered offenses” under the First Step Act, Tier 3 offenses are not covered (841(b)(1)(C)). Thomas sticks to a plain-language-statutory-construction argument and concludes: the First Step Act defines “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. The Fair Sentencing Act, in turn, altered the amounts of crack cocaine needed to trigger Tier 1 and Tier 2, but it left the language of Tier 3 unchanged. As a result of the “clear text” of the statute, Terry’s Tier 3 conviction is not eligible for resentencing. In Sotomayor’s concurrence, she called on Congress to pass a new law providing a chance for sentencing reductions to people convicted under Tier 3. She noted that the bipartisan sponsors of the First Step Act had urged the court to interpret the law to provide broad retroactive relief to Terry and potentially hundreds of similarly situated prisoners who were convicted of low-level crack offenses. United States v. Martinez, __F.3d__, 2021 WL 2409396 (10th Cir. 2021) Aric and Theo did what they could, but Judge Kelly and co. affirm the district court's imposition of a 27-month sentence for his burglary conviction under the Indian Major Crimes Act Two main takeaways: (1) Under the Sentencing Reform Act and the IMCA defendants may be sentenced to probation, a fine, or imprisonment pursuant to 18 U.S.C. § 3551(b). But district courts may not assimilate a state provision permitting a conditional discharge. (2) A hammer (or other instrumentality) can constitute a dangerous weapon under USSG §§1B1.1, n.1(E) and 2B2.1 even if not used as a weapon during the burglary offense. Possession of the hammer was enough to sustain the 2-level sentence enhancement.