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1 Published By Joaquin & Duncan, L.L.C.; A Law Firm of Federal Sentencing Attorneys September 2017 S e n t e n c i n g P a r t n e r s About Sentencing Partners: Sentencing Partners is published by Joaquin and Duncan, L.L.C., 1240 Souridge Ct. #105, Hurst, Texas 76053; telephone (817) ; facsimile (817) ; sentenceptrs@hotmail.com. Sentencing Partners is published monly and attempts to report e most recent cases at can aid you in effectively representing your clients at sentencing and in keeping you advised of e developments in e United States Sentencing Guidelines. If ere is an issue of particular interest at you would like discussed in Sentencing Partners, please feel free to contact us. About Joaquin & Duncan, LLC: Joaquin and Duncan, L.L.C. is a law firm of federal sentencing attorneys who work on a contract basis wi criminal defense attorneys assisting in pre-plea advisement; review of presentence reports; preparation of objections and motions for downward departure; preparation of motions for bond; preparation of appellate briefs; preparation of 2255 petitions; and assistance in obtaining choice of prison or drug treatment program. Note: Articles and summaries contained herein are based on information obtained rough research using a variety of sources. While every effort is made to insure accuracy, e firm of Joaquin & Duncan, L.L.C. its employees, agents, and associates cannot be held liable for any errors, omissions, or oversights contained herein. Readers are responsible for furer research of any case cited in is publication for which furer information is required. Inquiries are welcome via telephone, facsimile, , or U.S. mail United States v. Haymond 2017 WL (10 Cir. 2017) Statutory Mandatory Minimum Sentence Upon Revocation of Supervised Release Violated Due Process and Right to Jury Trial In January 2010, e defendant was convicted by a jury of one count of possession and attempted possession of child pornography. He was sentenced to 38 mons, to be followed by ten years of supervised release. He began serving his supervised release on April 24, On October 22, 2015, probation officers conducted a surprise search of e defendant s apartment and seized an Android phone, a personal computer belonging to e defendant, a personal computer belonging to his roommate, and two oer computers found in e kitchen area. A forensic examination of e phone revealed a web history containing numerous websites wi titles indicative of sexually explicit material, as well 59 images at e FBI s Internet Crime Task Force identified as child pornography. Probation filed a motion to revoke e defendant s supervised release. The district court found at e defendant committed five violations of his supervised release, but concluded at he had possessed only e irteen images located in his phone s gallery cache, not e oer forty-six images located in oer portions of e phone s cache. Because e possession of child pornography triggered a mandatory minimum sentence of five years reincarceration, under 18 U.S.C. 3583(k), e judge sentenced e defendant to five years reincarceration. On appeal, e defendant challenged his sentence, arguing at at 18 U.S.C. 3583(k) was unconstitutional because it deprived him of due process. The court explained at it could invalidate a congressional enactment only upon a plain showing at Congress has exceeded its constitutional bounds. It is plain here on e face of e statute at Congress has done just at. If not for e mandatory minimum sentence required by 3583(k), e sentence would have been significantly lower at two years at most, under 3583(e)(3). The court concluded at 18 U.S.C. 3583(k) violated e Fif and Six Amendments. First, it strips e sentencing judge of discretion to impose punishment wiin e statutorily prescribed range, contrary to Apprendi v. New Jersey, 530 U.S. 466 (2000) Alleyne v. United States, --- U.S. ----, 133 S. Ct (2013). Second, it imposes heightened punishment on sex offenders expressly based, not on eir original crimes of conviction, but on new conduct for which ey have not been convicted by a jury beyond a reasonable doubt and for which ey may be separately charged, convicted, and punished. The court vacated e sentence following at revocation, and remanded for resentencing under 3583(e)(3) wiout consideration of 3583(k) s mandatory minimum sentence provision or its increased penalties for certain subsequent conduct.

2 Case Summaries Sentencing Partners September 2017 Offense Conduct (Chapter 2) United States v. Perlaza-Ortiz 2017 WL (5 Cir. 2017) Prior Texas conviction for deadly conduct not a crime of violence The defendant, a Columbian citizen, pled guilty to unlawfully reentering e United States. At sentencing, e district court applied a sixteen-level increase under 2L1.2(b)(1)(A)(ii), based on a finding at a prior conviction, under Texas Penal Code 22.05(b), for discharging a firearm, was a crime of violence. The increase resulted in a sentencing range of 46 to 57 mons. The district court departed downward from a criminal history score of III to a level II, resulting in a range of 41 to 51 mons. Wiout e 16-level increase, e sentencing range would range would have been 18 to 24 mons. The court imposed a sentence of 41 mons. The Fif Circuit reversed, stating at e district court made its decision wiout e benefit of Mais v. United States, 136 S. Ct (2016). The interpretive tools provided in Mais lead us to e conclusion at Section 22.05(b) is not divisible. Because e government fails to prove Section 22.05(b) divisible, Section 22.05(b) may not be used here as e basis for a crime-ofviolence enhancement. While understandable in light of our pre-mais precedents, e district court s application of e enhancement constituted legal error. The court s decision in is case abrogated United States v. Hernandez Rodriguez, 467 F.3d 492 (5 Cir. 2006). United States v. Nesmi 2017 WL (5 Cir. 2017) Four-level enhancement for material portraying sadistic/masochistic conduct not warranted The defendant was arrested after he responded to an undercover agent s online ad posing as e moer of two young girls. He arranged to meet wi e agent and one of her underage daughters for a ree-way sexual encounter. A search of his home turned up a umb drive containing pictures of e defendant and his girlfriend s en fourteen-year-old daughter. One picture showed e defendant standing by e daughter s bed wi his erect penis on her lips. The defendant pled guilty to e sexual exploitation of a minor. The PSR recommended a four-level enhancement under 2G2.1(b)(4), which applies [i]f e offense involved material at portrays sadistic or masochistic conduct or oer depictions of violence, based on e photo of e defendant wi e daughter. At sentencing, e daughter testified at she had been asleep when e photo was taken and had no idea it existed. She also testified regarding her embarrassment and humiliation. Over e defendant s objection, e district court adopted e PSR and imposed a sentence of 360 mons. On appeal, e defendant claimed at e enhancement did not apply. The Fif Circuit explained at it had never faced e application of e enhancement where e minor was completely unaware of e exploitation, but wiout a contemporaneousness requirement, 2G2.1(b)(4) would apply in every child pornography case regardless of e content of e images in question.... Moreover, wiout requiring e

3 3 Sentencing Partners September 2017 pain inflicted on e victim to be contemporaneous wi creation of e image in question, e sadism enhancement could apply even where a victim never becomes aware at he or she is e subject of child pornography. Accordingly, we hold at an image portrays sadistic conduct where it depicts conduct at an objective observer would perceive as causing e victim in e image physical or emotional pain contemporaneously wi e image s creation. Because e victim in is case was asleep when e image was taken, no objective observer would conclude at e image portrayed sadistic conduct-namely, e defendant obtaining sexual release rough e infliction of physical or emotional pain on anoer. United States v. Robinson 2017 WL (9 Cir. 2017) Prior Washington State conviction for second-degree assault not crime of violence During an argument wi his girlfriend s moer, e defendant produced a.22 caliber assault rifle from a vehicle parked outside. After 911 was called, e defendant fled but left e rifle behind. His DNA was later found on e rifle. The next day, e defendant was found sleeping in his sister s car. Officer arrested him and found a backpack containing a Ruger.44 caliber magnum revolver. He was found guilty on two counts of being a felon in possession of a firearm. Using e modified categorical approach, e district court found at e defendant s prior Washington state conviction of second-degree assault in violation of section 9A was a crime of violence. Based on is finding, e district court applied a base offense level of 22, pursuant to 2K2.1. This resulted in a sentencing range of 110 to 137 mons. The district court imposed a belowguidelines sentence of 90 mons. On appeal, e defendant argued at e district court erred in ruling at his prior second-degree assault conviction was for a crime of violence. The Nin Circuit reversed, concluding at section 9A defines a single crime-second-degree assault-and provides seven different means by which a person can commit at crime. The statute is erefore indivisible. Moreover, because section 9A covers more conduct an e generic federal definition of a crime of violence under Guidelines section 2K2.1, it does not define a crime at categorically satisfies at definition. Thus, e district court erred in concluding at [e defendant s] prior seconddegree assault conviction was for a crime of violence. Sentence Adjustments (Chapter 3) United States v. Juarez 2017 WL (5 Cir. 2017) 3B1.5 body armor enhancement did not apply The defendant, a Houston police officer, was convicted on two counts related to his participation in a drug trafficking conspiracy. The defendant allegedly used his position as a police officer to assist a drug organization in its efforts to traffic drugs from Mexico to e United States. Evidence showed at e defendant provided organization members wi firearms, body armor, police scanners, and vehicles, as well as helping co-conspirators evade detection by law enforcement. The PSR recommended an enhancement under 3B1.5 based on e defendant provided e body armor. The district court agreed and imposed a sentence of 365 mons, e top of e sentencing range. On appeal, e defendant argued at e 3B1.5 enhancement did not apply because he did not use e body armor. The Fif Circuit explained at 3B1.5 applied when a defendant convicted of a drug trafficking crime or crime of

4 4 Sentencing Partners September 2017 violence uses body armor during e commission of e offense and use is defined as (A) active employment in a manner to protect e person from gunfire; or (B) use as a means of bartering. Furer, [u]se does not mean mere possession. Here, e defendant sold two bulletproof vests to two individuals and e vests were stored in a Houston stash house, along wi drugs, drug proceeds, and firearms. Based on e evidence, e defendant did not use e vests, but sold em. The plain language of 3B1.5 precludes its application to e sale of body armor. The provision states at use eier means active employment in a manner to protect e person from gunfire - which is plainly inapplicable - or use as a means of bartering. [The defendant] was not bartering by selling body armor. We decline to expand e application of a Guideline when doing so would be plainly inconsistent wi e Guideline s language. Thus, we find at e district court erred in applying e body-armor enhancement. United States v. Jackson 865 F.3d 946 (7 Cir. 2017) Minor could not be bo victim of sex trafficking and participant under 3B1.1(c) The defendant was convicted of ree counts of transporting a minor in interstate commerce wi e intent at she engage in illegal sexual activity, ree counts of sex trafficking of a minor, and one count of possessing a firearm in furerance of a crime of violence (sex trafficking of a minor). The minor, J.T., was fifteen years old when she met e defendant. The pair would travel to a city, place an ad on Backpage.com, rent a hotel room, and J.T. would commit acts of prostitution. The PSR recommended a two-level enhancement, under 3B1.1(c), claiming e defendant was an organizer, leader, manager, or supervisor of J.T. The district court agreed and imposed e enhancement. On appeal, e defendant argued at 3B1.1 was inapplicable because it applied to offenses committed by multiple participants and as a victim, J.T. could not be a participant in her own sex trafficking. Reviewing for plain error, e Seven Circuit noted at e application notes to 3B1.1(c) explain at a defendant must organize or supervise at least one or more oer participants to qualify for e adjustment. Furer, a participant is defined as someone criminally responsible for e commission of e offense, wheer or not convicted and clarified at a person who is not criminally responsible for e commission of e offense (e.g., an undercover law enforcement officer) is not a participant. This clarification makes clear at e district court erred by applying 3B1.1 to [e defendant]. Alough it is apparent at he supervised and managed J.T. s prostitution,... a minor victim cannot be considered a participant in her own trafficking. See United States v. Jarrett, 956 F.2d 864 (8 Cir. 1992). The sentence was vacated and remanded. Criminal History (Chapter 4) United States v. Madkins 2017 WL (10 Cir. 2017) Prior Kansas drug convictions did not qualify as career-offender The defendant was convicted on one count of distribution of cocaine base, and one count of distribution of cocaine base wiin 1,000 feet of a school. The district court sentenced him as a career offender based on two prior Kansas convictions for possession wi intent to sell cocaine and marijuana. The court determined at e two convictions were controlled substances offenses under 4B1.1(a). On appeal, e defendant argued at e Kansas statutes, K.S.A (a) (2001 version) and

5 5 Sentencing Partners September 2017 K.S.A (a)(3) (2001 version) criminalized possession of a controlled substance wi intent to merely offer for sale, where e guidelines definition only extended to offenses prohibiting possession wi intent to distribute - i.e., to actually sell or deliver a controlled substance. Citing United States v. Hinkle, 832 F.3d 569 (5 Cir. 2016) and United States v. Savage, 542 F.3d 959 (2d Cir. 2008), e Ten Circuit agreed, explaining at a mere offer to sell did not fit squarely wiin e definition in e guidelines because it was not a categorical match. [A]n attempt to commit a crime requires e intent to commit e crime and overt acts in furerance of at intent. And because a person can offer a controlled substance for sale wiout having e intent to actually complete e sale, a conviction for an offer to sell can be broader an a conviction for an attempt to sell. In sum, we hold e district court erred in applying e career-offender enhancement, because neier of [e defendant s] prior drug convictions qualify as controlled substance offenses for purposes of e enhancement. Departures ( 5K) United States v. Doe 865 F.3d 1295 (10 Cir. 2017) Govt s decision to not file for substantial assistance subject to good-fai review The defendant pled guilty to two counts of possession wi intent to distribute and agreed to cooperate. The government agreed - in its sole discretion and by any means it deemed appropriate - to evaluate e defendant s cooperation in determining wheer to file a substantial-assistance motion. The defendant remained in protective custody while he and a close family member helped law enforcement bring down a local drug operation. That cooperation placed bo of eir lives at risk. The AUSA twice asked e downward departure committee of e United States Attorney s Office to approve e filing of a substantial-assistance motion. Wiout explanation, e committee denied ose requests. In response, e defendant filed a motion to enforce e plea agreement, arguing at e government acted arbitrarily and in bad fai, especially in e absence of any explanation for e committee s decision. The district court denied e motion, reasoning at e plea agreement s plain language left e decision to file a motion wiin e government s sole discretion, relying on United States v. Kovac, 23 Fed. Appx. 931 (10 Cir. 2001). At sentencing, e district court determined e sentencing range to be 121 to 151 mons, and imposed a sentence of 121 mons. On appeal, e defendant argued at e government breached e plea agreement s implied duty of good fai and fair dealing by refusing to file a substantial-assistance motion. The Ten Circuit agreed, holding at even when a plea agreement gives e government complete discretion to decide wheer to file a substantial-assistance motion, a court may nevereless review wheer e prosecutor has made its determination [not to file such a motion] in good fai. In order to trigger good-fai review of a prosecutor s discretionary refusal to file a substantial-assistance motion, a defendant must first allege at e government acted in bad fai. The government may en rebut at allegation by providing its reasons for refusing to file e motion. Assuming ose reasons are at least facially plausible, we hold at a defendant is only entitled to good-fai review if he or she produce[s] evidence giving reason to question e justification [e government] advanced. Here, e government did not fulfilled e second step because e district court ruled at e government s decision was not subject to a good-fai review. Accordingly, we remand to e district court wi directions to (1) evaluate e facial

6 6 Sentencing Partners September 2017 plausibility of any justifications e government might provide; and (2) assess wheer [e defendant] can present evidence at would call ose justifications into question. If so, en e district court should determine wheer e government s refusal to file a substantialassistance motion in is case breached e plea agreement s implied duty of good fai. Circuit Split Compare United States v. Isaac, 141 F.3d 477 (3d Cir. 1998) ( [A] district court is empowered to examine for good fai a prosecutor s refusal to file a 5K1.1 motion pursuant to a plea agreement at gives e prosecutor sole discretion to determine wheer e defendant s assistance was substantial. ), wi United States v. Aderholt, 87 F.3d 740 (5 Cir. 1996) ( If e [g]overnment retains sole discretion to file e [substantial-assistance] motion, its refusal to file is reviewable only for unconstitutional motives such as e race or religion of e accused. ). Probation/Supervised Release (Chapter 7) United States v. Barber 865 F.3d 837 (5 Cir. 2017) Special condition impermissibly delegated auority The defendant pled guilty to one count of possession of 100 kilograms or more of marijuana wi intent to distribute. He was sentenced to twelve mons and one day, and a ree-year term of supervised release. One special condition of his supervised release required him to participate in a drug and/or alcohol treatment program as deemed necessary and approved by e Probation Office. The defendant challenged is condition on appeal. Reviewing for plain error, e Fif Circuit explained at a district court cannot delegate to a probation officer e core judicial function of imposing a sentence, including e terms and conditions of supervised release. The court reversed e sentence, finding at e language of e special condition created ambiguity as to wheer e district court had permissibly delegated auority to decide e details of a sentence s implementation or had impermissibly delegated e auority to impose a sentence. If e district court intends at e [treatment] be mandatory but leaves a variety of details, including e selection of a [treatment] provider and schedule to e probation officer, such a condition of probation may be imposed. If, on e oer hand, e court intends to leave e issue of e defendant s participation in [treatment] to e discretion of e probation officer, such a condition would constitute an impermissible delegation of judicial auority and should not be included. United States v. Browder nd 2017 WL (2 Cir. 2017) Defendant did not violate sex offender treatment special conditions The defendant was convicted of possessing child pornography. He was sentenced to 78 mons and 10 years supervised release. After serving his time, he began e supervised release term. His conditions included a prohibition against contact wi minors (oer at his own children) and a requirement at he participate in a sex-offender mental heal program. The defendant attended two sessions of e program, but e treatment was terminated when he refused to sign e treatment agreement on e basis at it required him to refrain from any contact wi anyone under 17 years old, unless he received prior approval from his parol or probation officer. The Probation Office filed a petition alleging violations of e supervised release conditions. The district court found e violation had been proven and sentenced e

7 7 Sentencing Partners September 2017 defendant to time served. The defendant appealed, arguing at e terms of e treatment agreement conflicted wi his actual sentence in at e conditions allowed him to be wi his children. We agree wi [e defendant] at e treatment agreement would have subjected him to a more punitive condition governing contact wi minors an did e condition to which [he] was actually sentenced by e District Court. [The defendant] was erefore well wiin his rights to object to at term of e agreement. Nor do we find at [he] oerwise acted unreasonably wi respect to e treatment special condition. [He] made what appears to be a good-fai effort to attend e treatment, appearing at (at least) two sessions [and] communicated his objection to e treatment agreement in a written letter to USPO, and his objection was also documented in e treatment facility s records. Finding at e defendant violated e condition of release by objecting to e agreement was an abuse of discretion. Restitution United States v. Anderson 2017 WL (7 Cir. 2017) Recovered money was not unusable, us not included in restitution amount The defendant pled guilty to armed bank robbery. The district court ordered restitution in e amount of $4,131, e amount stolen, less an amount recovered from a co-defendant. Included in e restitution amount was an extra $2,107, e amount of dye-damaged money recovered shortly after e robbery. At e sentencing hearing, trial counsel did not address restitution and e government never said anying about e $2,107. On appeal, e defendant challenged e restitution amount arguing at e government failed to prove at e stolen money could not be returned to e bank because it was too damaged by e exploding dye pack. Alough e government argued on appeal at e money was not returned to e bank because it was burned and stained, e government never proved is assertion at sentencing. There is noing in e record suggesting at e bills in e government s possession are non-usable, nor did e judge at eier sentencing hearing make a finding on at question. In fact, e government had introduced ose very bills during e trial of a co-defendant and a police officer testified at he had counted e money, but did not mentioned any of it being burned or at it was unusable. The court concluded at plain error resulted from e government s failure at resentencing to offer evidence at e $2,107 of stolen currency in its possession is inadequate for return to e victim bank. Furer, e error harmed bo e defendant s substantial rights and e fairness, integrity, and public reputation of judicial proceedings. Post-Conviction United States v. Yates 2017 WL (6 Cir. 2017) Prior Ohio conviction of robbery not crime of violence After executing a search warrant at e defendant s residence, police seized firearms, ammunition, crack cocaine, and drug paraphernalia. A jury found him guilty of being a felon in possession of a firearm, and possession of crack cocaine wi e intent to distribute. The district court determined at e defendant was an armed career criminal based on his criminal history. His conviction and sentence were affirmed in His 2255 motion was denied, but he was granted a Certificate of Appealability on e issue of ineffective assistance. The COA was expanded to include a claim at he was improperly sentence in light of Johnson v. United States, 135 S. Ct. 2551

8 8 Sentencing Partners September 2017 (2015). In 2016, e court vacated and remanded e sentence. An updated PSR determined e defendant was a career offender under 4B1.1, based on his 1999 Ohio robbery conviction and his 2008 Ohio drug-trafficking conviction. The defendant objected, arguing at e Ohio robbery conviction was not a qualifying offense. The district court adopted e PSR, but departed downward based on e defendant s depression, poor medical condition, and e lack of any disciplinary history while incarcerated, and imposed a sentence of 240 mons, a departure from 262 to 327 mons. On appeal, e defendant contended at he was not a career criminal because e Ohio robbery conviction, under Ohio Rev Code Ann (A)(3), was not a qualifying offense. The Six Circuit applied e categorical approach and found at e plain language of e Ohio statute contained an expansive definition of force [at] appears to cover more an force capable of causing physical pain or injury to anoer person. Furer, a review of Ohio state-court decisions confirmed e view at a defendant need not engage in violent force in order to be convicted of robbery under Ohio Rev. Code Ann (A)(3). Based on Ohio state-court decisions, and guided by e various circuit cases, we erefore conclude at e force criminalized by Ohio Rev. Code Ann (A)(3) is not violent force... capable of causing physical pain or injury to anoer person and e conviction did not qualify as a crime of violence. Crime of Violence United States v. Genao nd 2017 WL (2 Cir. 2017) Court procedurally erred in imposing 16-level increase under 2L1.2(b)(1)(A)(ii) The defendant, a national from e Dominican Republic, pled guilty to illegally attempting to reenter e United States after having been deported. The PSR recommended a 16-level enhancement based on a 2009 New York conviction for first-degree burglary and first-degree robbery, but cited e wrong New York statute and e wrong offense seconddegree robbery of a motor vehicle. This resulted in a sentencing range of 46 to 57 mons, instead of 18 to 24 mons if an 8-level enhancement was applied. The district cited to e police reports of e 2009 offense (which was a home invasion, and not e robbery of a motor vehicle) and imposed a sentence of 46 mons. On appeal, e defendant argued at e sentence was procedurally unreasonable. The Second Circuit agreed, noting ere were no documents correctly identifying e defendant s prior convictions before e sentencing court. Because e defendant in fact had never pled guilty to e charge identified in e PSR - second-degree robbery in violation of N.Y. Penal Law (3) - at purported robbery conviction could not support e application of e 16-level enhancement. Regarding e actual prior conviction first-degree burglary, e court cited Mais v. United States, 136 S. Ct (2016), and found at e New York firstdegree burglary statute was broader and reached more conduct an e generic federal definition of burglary. Even assuming at e statute was divisible, none of e Shepard documents were before e sentencing court. At no point did e 8

9 9 Sentencing Partners September 2017 court look to e elements of e conviction; instead, it referenced only e particular facts underlying e conviction. Wiout e Shepard documents, we do not believe e burglary conviction could provide factual findings in e PSR... adequate to support e sentence in e absence of e court s own explanation for e chosen sentence. Miscellaneous Issues United States v. Brito 2017 WL (9 Cir. 2017) District court had auority to give prisoner credit for mons served in state custody when calculating new sentence When e defendant was originally sentenced in a drug-related offense, e district court gave him a four-mon credit for time he had served in state custody. After Amendment 782 was promulgated, e defendant filed a motion under 18 U.S.C. 3582(c)(2) to reduce his sentence. In e motion, he requested at he be awarded e same four-mon reduction when his new sentence was calculated. The district court believed at it was precluded by 1B1.10(b)(2)(A) from granting e requested credit, and reduced e sentence to 70 mons, instead of 66 mons. The Nin Circuit explained at under 18 U.S.C. 3582(c)(2), e district court must engage in a two-step inquiry to determine if a reduction is appropriate: First, a district court must determine wheer a prisoner is eligible for a sentence reduction under e Commission s policy statement in 1B1.10. Second, a district court must consider any applicable 3553(a) factors and determine wheer, in its discretion, e reduction auorized by reference to e policies relevant at step one is warranted in whole or in part under e particular circumstances of e case. The court concluded at at a defendant s term of imprisonment, as used in e statute and e guideline, includes time spent in bo state and federal custody. Because e district court believed at it did not have e auority to reduce e sentence by four mons, e sentence imposed was vacated and remanded. Cases In is Issue United States v. Anderson, 2017 WL (7 Cir. 2017) United States v. Barber, 865 F.3d 837 (5 Cir. 2017) United States v. Brito, 2017 WL (9 Cir. 2017) nd United States v. Browder, 2017 WL (2 Cir. 2017) United States v. Doe, 865 F.3d 1295 (10 Cir. 2017) nd United States v. Genao, 2017 WL (2 Cir. 2017) United States v. Jackson, 865 F.3d 946 (7 Cir. 2017) United States v. Juarez, 2017 WL (5 Cir. 2017) United States v. Madkins, 2017 WL (10 Cir. 2017) United States v. Nesmi, 2017 WL (5 Cir. 2017) United States v. Perlaza-Ortiz, 2017 WL (5 Cir. 2017) United States v. Robinson, 2017 WL (9 Cir. 2017) United States v. Yates, 2017 WL (6 Cir. 2017) 9

10 My Federal Prison Consultant, L.L.C. September 2017 BOP Insider A Case Manager s (Ret d) Perspective About Jack Thomas Donson: Jack Thomas Donson My Federal Prison Consultant, LLC 44 Wall Street, 12 Floor New York, New York jack@mfpcllc.com These articles will provide general information about various BOPrelated topics from e perspective of someone who worked inside e BOP for over 23 years. It is our goal to aid you in effectively representing your clients before and after sentencing and in keeping you advised of e developments in connection wi e BOP. About My Federal Prison Consultant LLC Donson is a qualified expert in e following BOP-related fields: Reviewing PSR for red flag confinement-related issues; Security designation and classification; BOP correctional programs; Restrictive housing (solitary confinement); Supervised release issues; Evaluating BOP records for re-sentencing. He is available for consultation and testimony. Articles and summaries contained herein are based on information obtained rough research using a variety of sources. While every effort is made to insure accuracy, neier Joaquin & Duncan, L.L.C. nor My Federal Prison Consultant LLC, or its employees, agents, and associates cannot be held liable for any errors, omissions, or oversights contained herein. Readers are responsible for furer research of any case cited in is publication for which furer information is required. Nunc Pro Tunc Designation The term Nunc Pro Tunc designation refers to how e Federal Bureau of Prisons retroactively designates a state facility for federal inmates to obtain jail credit in some circumstances for inmates wi interacting state and federal sentences. It is a misunderstood concept for many, and totally unknown for oers. The term Nunc Pro Tunc is a Latin expression meaning now for en. The BOP policy governing is process is contained in Program Statement, , Designation of State Institution for Service of Federal Sentence. 1 A federal judge does not have e statutory auority to award jail credit. When a federal judge orders a sentence to run concurrent to a state term of imprisonment, e federal sentence will only begin e day it is imposed. If a federal judge does not stipulate concurrent, e FBOP considers e term of imprisonment to be consecutive. It should be noted under e sentencing guideline (5G1.3b), a federal judge can depart downward under certain circumstances regarding relevant conduct to reflect time spent in state custody which is not credited towards e federal term. From a practice tip perspective, e most important point on is issue involves e need to be proactive prior to federal sentencing regarding jurisdiction. Fundamental to jurisdiction is e matter of primary custody. It is imperative to determine under which jurisdiction, federal or state, e defendant is being held. I have witnessed inmates on writ from state jurisdictions be designated to a federal facility in error, only to eventually be returned to e state after e error was discovered. When ey finally returned to e BOP after e satisfaction of e state sentence, ey quickly discovered e time spent in federal custody prior to e imposition of sentencing was not credited. I have also witnessed state auorities wi primary custody relinquish jurisdiction during pre-trial detention by providing a bail order to federal custody. A Nunc Pro Tunc designation is a meod of retroactively designating e state facility after-e-fact to obtain prior credit if certain circumstances are met. The core document to determine primary custody issues is e Marshal s USM-129 form which is not only one of e core documents in e designation process, but also e primary document e BOP issues to award jail credit. The most significant case law on e subject is Barden v. Keohane, 921 F.2d 476 (3rd Cir. 1990). It should be noted at while Barden mandates e BOP to re-visit e issue upon request, it does not mandate em to grant a Nunc Pro Tunc designation in all circumstances. In addition, oer cases of interest to e topic of jail credit are Willis v. United States, 449 F2d 923 (5 Cir. 1971); Kayfez v. Gasele, 993 F.2d 1288 (7 Cir. 1993); and United States v. Wilson, 503 U.S. 329 (1992). A more recent case is Setser v. United States, 132 S. Ct (2012), where e Court held at a federal judge can run a sentence concurrent or consecutive to a state sentence at has yet to be imposed. Perhaps e most comprehensive series of articles on is topic is from e Sentencing Project by JaneAnne Murray. 2 I cannot emphasize enough e need to consider how state charges, sentences or potential sentences will be processed by e BOP, as well as e need to confirm primary custody for clients involved wi multiple jurisdictions. It is far easier to proactively manage ese issues raer an e laborious efforts which go into trying to rectify ese issues after e fact. 1 2 Available at: Available at: cy-e-interaction-of-federal-and-state-sentences.pdf 10