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1. A small thread on technicalities and federal criminal appeals. Nothing original but just on my mind and I need to get it out of my system and move on to more pressing things.
2. Much of my work involves what outsiders (& insiders!) would call technicalities. Examples (drawn from real cases): Is Texas burglary really "burglary," in generic sense? Does felony murder always involve the "use" of force "against" the victim, when it is strict liability?
3. Usually, this word - "technicality" - is spoken derisively. Pound the facts, pound the law, pound the table, that kind of thing. As though, if we had anything truly substantive and important to argue, we would. I will push back against that notion here.
4. Those technicalities have incredibly big consequences for people. The two examples I mentioned above matter for the Armed Career Criminal Act, which is often the difference between a sentence of 4-5 years and a sentence of 15-20 years. Depending entirely on "technicalities"
5. Meanwhile, the more substantive concerns - the ones that (intuitively) courts and attorneys are "supposed" to care about? Appellate courts can't, or won't, step in. This is probably the most surprising thing to an outsider.
6. The Circuit Courts won't "re-weigh" the statutory sentencing factors. First-time offender, takes care of his family, was the only person prosecuted (and only minority) among a ring of illegal gamblers? Once district court imposes a sentence, appellate cts won't revisit
7. Drug sentences are driven by drug quantity. Someone "caught" with 1 gram of (random drug) can be sentenced as though she were a huge narcotrafficker, based only on the word of an anonymous informant printed in the Presentence Report claiming she sold him a pound of meth ev day
8. So your client goes to trial. And there is some hotly disputed evidence, the parties spend hours and hours fighting about in front of the district court. Judge lets it in. Guess what? The error is probably "harmless."
9. So what if you have a lightning-strikes-unicorn type moment, where SCOTUS recognizes that there was some other element the government had to prove at trial, and they prosecutors put on 0 evidence at all, and you preserved your sufficiency-of-the-evidence motion?
10. This is happening right now, all over country, in light of the Supreme Court's decision in Rehaif. And would you be surprised to learn that the circuit courts have almost unanimously decided that juries COULD HAVE inferred the existence of that element from trial evidence?
11 (relevant to 7): Drug quantity appeal? Current law: the PSR=presumptively reliable; Def't bears burden of refuting the information in PSR; the "clear error" standard of review means Appellate court must be "firmly convinced" d ct made a mistake in attributing quantity
12 And I shouldn't say this while my account is public, but what about those technicalities? Well, a whole bunch of my clients stood to benefit from the 2015 SCOTUS decision in Johnson. Back when those people were sentenced, they couldn't challenge ACCA sentences as "too long"
13 "Congress has spoken, separation of powers, we are merely calling balls and strikes." But then we learn that Congress did *not* speak clearly enough in part of the ACCA. And a faithful application of SCOTUS and Circuit precedent meant many were entitled to "early" release
14. By "early" I mean usually 8, 9, 10, 11, or 12 years into a sentence that lawfully should have been capped at 10, but was in fact longer....
15. To avoid that deleterious result, the courts just started changing their own law to keep people from getting out. Or making up new rules with no textual support.
16. this is not directed at any particular circuit . they all did it. there is (I guess) Big-Time institutional pressure to avoid letting people out of these draconian prison sentences
17. Whether you prefer Clint Eastwood in "Unforgiven" or Snoop in the Wire: "Deserve's got nothing to do with it."
18. If judges don't like spending so much time futzing around with the categorical approach, then they should advocate for a sentencing regime that does not place INCREDIBLY LARGE consequences on the analysis of prior convictions.
19. If you want more attention paid to things like "right and wrong," "guilty or innocent," "fair or unfair," then maybe you should give those concepts more careful scrutiny in your day-to-day opinions.
20. As long as we have: (a) federal sentences much longer than sentences for same crime in state court; (b) federal prohibition on jury involvement in non-death sentencing; and (c) an "elastic" concept of the Commerce Clause, then things are always gonna be horrible . /thred
