A day in the Airport

I’ve recently become aware of subversive architecture. The main purpose of these structural “enhancements” are to ward off homeless people in a park so the bad element will keep away.

Sometimes these architectural modifications will come in the form of spikes on the ground in a vestibule corner to prevent sleeping there. {Others|Other times|Sometimes|Certain Cities) it will be armrests on community benches, again to prevent sleeping there.

Instead of trying to scare away the vagrant population in large cities, why don’t we, as a people, do something to eliminate homelessness instead?

Now when I see seating areas in airport lounges, all I can see is that corporations see us all this way, not just homeless people. We’re all cattle. Airport Lounges

Advertisements

The Purpose of Federal Supervised Release

The Standard for Federal Supervised Release

A few years ago, the Seventh Circuit published an opinion clearly showing their views on the practice and purpose of federal supervised release. That circuit is doing it again with an opinion regarding three separate cases, each challenging their special conditions of supervised release. (U.S. vs. Kappes, U.S. vs. Crisp, and U.S. vs. Jurgens; Nos. 14-1223, 14-2135, & 14-2482 respectively and decided April 8, 2015.)

Thanks to the Federal Criminal Appeals Blog for the head’s-up on this one.

There are some important points made by this ruling that anybody interested in the nitty-gritty of federal supervised release should be aware of. If you are on supervised release, or interested in the subject at all, the entire opinion is a must read.

The Purpose of Supervised Release

To begin, the Circuit posted a history and usage overview of supervised release. The most interesting part of this section of the order is below:

“The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism.” (United States v. Johnson, 529 U.S. 53, 59-60 (2000); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th Cir. 2013))

The real meat of this point is clarified a little later.

“Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, “since those purposes will have been served to the extent necessary by the term of imprisonment.” (S. Rep. No.98-225, at 125; see also Johnson, 529 U.S. 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”)…see also 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as “the decompression stage” between prison and full release.” (Johnson v. United States, 529 U.S. 694, 709 (2000))

What this says is simple. The goals of supervised release are not to further punish the defendant, since that is the purpose of incarceration, not supervision. The factors courts must consider when contemplating imposing a term of federal supervised release are almost the same as the ones they consider when imposing prison time. The only difference is that courts cannot consider the need for supervised release to provide just punishment for the offense.

The Meaning Behind the Purpose

Let us consider the issue from the perspective of one who wishes to ask the court for early release from federal supervised release. If, 1) the purpose of supervised release is not to inflict more punishment for the underlying crime; and 2) the “decompression state” between prison and full freedom is complete, then there is no reason to keep a somebody on supervision any longer.

The hard part is proving that this decompression stage is accomplished. From many of prior 7th Circuit decisions, we have these factors that mark this decompression and satisfy that requirement. From the first quoted section, these five purposes of supervision are:

  1. Rehabilitation: have you completed all treatment and aftercare?
  2. Deterrence: are you effectively deterred from committing future federal crimes?
  3. Training and Treatment: do you have enough treatment and education to stay clean from crime and to maintain employment? Stability of home and employment are key indicators to a judge that you pose a low risk to commit new crimes. Sometimes it just matters how busy you are. Job? Kids? Wife/Husband? All these keep a person busy, and no idle time means no time to devote to criminal behavior. “Idle hands are the Devils’ playground” and all…
  4. Protection of the public: Again, this lends to treatment, stability, and reduced risk of committing new crimes.
  5. Reduction of recidivism: At this point it gets redundant, but explicit. What is your quantifiable risk to commit new crimes. If you have zero criminal history, this part is easy!

That’s All For Now

So far, we’ve only viewed about 6 pages of this 68-page opinion. However, this is plenty to digest for now. If you’re looking to gain early release from federal probation or federal supervised release, consider the purpose of supervision and ask yourself if you’re finished with its intended goals. If so, you could be a prime candidate!

Contact the PCR Consultants team for a free consultation
www.pcr-consultants.com
(480) 382-9287

Federal Supervised Release

Time Limits on Filing a 2255 appeal

When Can you file a §2255 Appeal

We will talk more about this below, but federal defendants only get one shot at file an appeal of this type. Making it count is of the utmost importance. To do this, three hurdles must be overcome.

First, right court jurisdiction must be established (meaning the motion must be made to the Court which did the sentencing, not the local prison courthouse). Second, the arguments made must be applicable to a §2255 appeal. Third, the filing has to happen within the allowable time period for habeas-style petitions.

For an in-depth discussion on what constitutes an issue for direct appeal, go here. For an in-depth discussion on what constitutes an issue for §2255 appeals, go here.

Unlike direct appeals, which must be filed within 14 days (typically) after the judgment of sentence, a §2255 Appeal can be filed within a 1 year time period. That is, a defendant has to file this motion within one year of the latest of these four events:

  1. The date of final judgment;
  2. The date any obstacles to filing the motion by government action in violation of the constitution were removed;
  3. The date when the United States Supreme Court rules on a case which triggers an applicable argument to the prisoner;
  4. The date when axiomatic facts could have been discovered through research.

For clarification, in the first bullet above, a judgment becomes final when sentencing is pronounced or when any direct appeal to that judgment was entered. So if the Supreme Court refuses to hear an appeal, then the date of final judgment is the date that the Supreme Court petition for hearing is denied.

Prisoners Get One Shot

Inmates only get one shot at filing a §2255, except in rare cases where new evidence is found, or the Supreme Court makes a startling ruling which changes the process of similar cases. Many, many inmates get help from other inmates they are incarcerated with to file a motion like this. Some are very good, but most times this is a total waste of the one shot a inmate gets at filing a motion like this.

The moral of this story? Do the best work the first time around and avoid making common mistakes that get a defendant’s one chance at a §2255 tossed out before it even gets a chance to be heard.

If you would like to learn more about filing federal appeals, and what these motions can and cannot do, visit PCR Consultants for a full report.

You can also give us a call at (480) 382-9287 for a free, no obligation consultation regarding your questions about §2255 appeals.

The PCR Consultants Team
www.PCR-Consultants.com
(480) 382-9287

Federal 2255 Appeals

How we Do 2255 Appeals

How We Work

PCR Consultants is a document preparation company. We make, legally-sound documents that our clients can utilize to file for all manner of relief in the federal criminal justice system. Anything from §2255 motions to Requests for Early Release from Probation.

We are not lawyers, and we aren’t a law firm. That means we don’t represent our clients in court, and cannot file for them. What we do is write fantastic documents that will make the defendant HEARD by the district court, and include with them an application for the appointment of defense counsel.

Inmates are not guaranteed free defense attorney’s as a right during the process of a §2255. This ipractice protects the federal defenders office from being slammed with work in this area. Most of these types of appeals that are filed have little to no merit, or are dismissed for various reasons (such as the ability to raise the issue on direct appeal or no standing to argue new constitutional law in a habeas proceeding).

However, once a judge accepts the request for an evidentiary hearing on a §2255 that is ruled to have actual merit, appointment of counsel is required (according to Federal Rules of §2255 Procedure 8(c)). Our service comes as a package deal, we write:

  1. The original motion, supplemented with the district’s own forms (if it requires them);
  2. A motion for an evidentiary hearing if the judge finds merit in the request;
  3. A motion to proceed as indigent (In Forma Pauperis); and,
  4. A motion for the appointment counsel if the motion for evidentiary hearing is granted.

If you would like to learn more about filing federal appeals, and what these motions can and cannot do, visit PCR Consultants for a full report.You can also give us a call at (480) 382-9287 for a free, no obligation consultation regarding your questions about §2255 appeals.

The PCR Consultants Team
www.PCR-Consultants.com
(480) 382-9287

Federal Habeas Appeals

Definition of Federal Supervisied Release

The 7th Circuit on Federal Supervised Release

A few years back, the Seventh Circuit published an opinion clearly showing their views on the imposition and purpose of federal supervised release.

That circuit is back at it again with an order regarding three separate cases, each challenging their supervised release conditions. (U.S. vs. Kappes, U.S. vs. Crisp, and U.S. vs. Jurgens; Nos. 14-1223, 14-2135, & 14-2482 respectively and decided April 8, 2015.) Thanks to the Federal Criminal Appeals Blog for the head’s-up on this one.

There are some key points made by this opinion that anybody interested in the operation of federal supervised release should be aware of. If you are on federal supervised release, or interested in the subject at all, the entire ruling is a must read.

The Purpose of Supervised Release

To start off with, the Circuit posted a history and usage overview of supervised release. The most interesting part of this section of the order is below:

“The purposes of supervised release have been variously described as rehabilitation, deterrence, training and treatment, protection of the public, and reduction of recidivism.” (United States v. Johnson, 529 U.S. 53, 59-60 (2000); United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014); United States v. Evans, 727 F.3d 730, 733 (7th Cir. 2013))(Citations omitted and footnoted)

The real meat of this point is clarified a little later.

“Supervised release was not intended to be imposed for the purposes of punishment or incapacitation, since those purposes will have been served to the extent necessary by the term of imprisonment.”

(S. Rep. No.98-225, at 125; see also Johnson, 529 U.S. 59 (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration.”))…see also 18 U.S.C. § 3583(c) (directing a court contemplating the imposition of supervised release to consider most sentencing factors set forth in 18 U.S.C. § 3553(a), except the need for the sentence to provide just punishment for the offense). The Supreme Court has described supervised release as “the decompression stage” between prison and full release.” (Johnson v. United States, 529 U.S. 694, 709 (2000).) (Citations omitted and footnoted))

What this says is simple: the goal of federal supervised release is not punishment , since that is what incarceration is for. The factors courts must consider when imposing a term of federal supervised release are almost the same as the factors they consider when imposing a term of incarceration. The only difference is that court’s cannot consider the need for supervised release to provide just punishment for the offense.

The Meaning Behind the Purpose

Now look at this from the perspective of somebody who wishes to gain early release from federal supervised release. If, 1) the purpose of supervised release is rehabilitation and not punishment for the originating crime; and 2) the “decompression state” between prison and full release is accomplished, then 3) there is no reason to keep a defendant on supervision any longer.

The trick is proving that this decompression stage is over. From lots of prior 7th Circuit decisions, we have these factors that mark this decompression and satisfy that requirement. From the first quoted section, these five purposes of supervision are:

  1. Rehabilitation: have you completed all treatment and aftercare?
  2. Deterrence: are you effectively deterred from committing future federal crimes?
  3. Training and Treatment: do you have enough treatment and education to stay clean from crime and to keep stable employment? Stability of home and job is a key indicator to judges that you pose a low risk to commit new crimes. Sometimes it just matters how busy you are. Job? Kids? Wife/Husband? All these keep a person busy, and no idle time means no time to devote to criminal behavior. “Idle hands are the Devils’ playground” and all…
  4. Protection of the public: Again, this lends to treatment, stability, and reduced risk of committing new crimes.
  5. Reduction of recidivism: At this point it gets redundant, but explicit. What is your quantifiable risk to commit new crimes. If you have zero criminal history, this part is easy!

That’s All For Now

To learn more about this process, visit PCR Consultants or call us at (480) 382-9287 for a free consultation.

The PCR Consultants Team
www.pcr-consultants.com

Federal Supervised Release

What Can I Argue in a 2255 Appeal?

Issues for 2255 Motions

Nearly all federal criminal defendants cannot afford to hire stellar legal representation for themselves when charged with a federal crime. A vast majority of federal defendants are assigned a federal defender to represent them.

Federal defenders are amazing at their jobs. However, they also have case loads MUCH larger than privately hired lawyers and will often make errors or be ineffective because of it. It cannot be stressed enough that great lawyers can make big mistakes when overworked, and no lawyer is more overworked than a federal defender.

That being said, one of the issues that is most often used for the basis of §2255 filings is the ineffective assistance of counsel.

**A Good Example**

A client we had in early 2017 was eligible and appropriate for a reduction in offense level points because he was a small piece in a large criminal fraud conspiracy. A “minor role” adjustment is ready and available in the Sentencing Guidelines Manual for defendants just like him. Unfortunately, this adjustment is applied very sparingly in some districts, and liberally in others.

Our client’s public defender did not mention or fight for this reduction, which was quite appropriate and would have cut a year or more off of his sentence. So here is where a 2255 works well, and for the following reasons:

  1. The client’s federal defender failed to argue for this adjustment at original sentence, but should have, and was therefore ineffective;
  2. The sixth amendment of the U.S. Constitution guarantees effective counsel, so this issues is a constitutional one, meaning a §2255 is the correct course;
  3. The issue could not be argued on direct appeal because it was not raised at the original sentencing hearing; and,
  4. The issue is timely because, last year, the Sentencing Commission recognized that this adjustment was being applied unevenly between the districts and issued a clarifying amendment to encourage a more even application, triggering a “new evidence” type of claim for our client.

There are way too many issues that could trigger a §2255 to be successfully brought and accepted by the sentencing, so we won’t make a list here. However, anything from a sentence that goes above the statutory maximum allowed by law, or issues that should have been raised during the original prosecution by defense counsel, but was not, are all covered under the §2255 umbrella.

If you would like to learn more about filing federal appeals, and what these motions can and cannot do, visit PCR Consultants for a full report.

You can also give us a call at (480) 382-9287 for a free, no obligation consultation regarding your questions about §2255 appeals.

The PCR Consultants Team
www.PCR-Consultants.com
(480) 382-9287

Federal Habeas Appeals

Motions for Appeal Under 28 USC 2255

How to file a 2255 Motion to Set Aside Sentence?

This is a very big question to answer, but the question that needs to be answered first is, “Can and should I file a §2255?”

Again, this is a massive answer, however it is just as important as how to file. A motion of this sort is actually an appeal, without being a direct appeal. It is considered a collateral attack on the sentence of incarceration itself for constitutional problems.

Only federal defendants who are currently incarcerated can file one. The normal course of criminal cases in the federal criminal system involves a direct appeal. Second, when a direct appeal doesn’t work, was never filed, is not appropriate to the issue(s), or simply doesn’t meet the needs of the defendant, a §2255 is the way to go.

In order to be eligible to file one of these types of appeals, a few criteria need to be met:

  1. Only incarcerated federal inmates may file;
  2. Complaints cannot be made if they could have been made on direct appeal;
  3. Complaints must be an attack on the sentence itself, and not issues related to confinement (such as RDAP acceptance, placement in halfway house, or holdings in Solitary/SHU);

If you would like to learn more about filing federal appeals, and what these motions can and cannot do, visit PCR Consultants for a full report.

You can also give us a call at (480) 382-9287 for a free, no obligation consultation regarding your questions about §2255 appeals.

The PCR Consultants Team
www.PCR-Consultants.com Federal Appeals

The Difference Between Federal Prison and Federal Supervised Release

Defining Federal Probation Against Incarceration

A question clients often ask during consultations is how we convince Federal Judges to grant release orders for our clients. Our success rates are the same or better than those of defendants who hire expensive law firms to accomplish the same goal.

The simple answer comes from the United States Code and the very definition of supervision itself. Stick with this piece because dull statutes turn into clear, powerful answers Fast.

Understanding What Supervised Release is, and What it is not

Lets begin with the assumption that supervised release and incarceration are different. Parts of the same sentence, but different. This might seem obvious, but the meaning behind this fact might not be so obvious.

Take for instance the law that allows sentence reductions versus the law that authorizes early termination of supervision. Both come from Title 18 U.S. Code. Sentence reductions are made via §3582 requests, while supervised release early terminations are made via the very next section: §3583.

Basically, asking a judge to terminate a sentence of federal supervision early is simply a low-grade sentencing reduction. A judge can order the early termination, but what he is really doing is reducing the length of a supervised release sentence to “time served”. A judge can legally do this whenever a defendant has successfully completed more than one year on supervision.

The One BIG Difference

Making a decision on an incarceration sentence reduction (via §3582) requires a judge to consider all 9 of the same factors that they did during the original sentencing hearing. However – and the difference is IMPORTANT – making an early termination of supervision decision only considers 8 of these 9 factors.

Which one is missing? Glad you asked. Of the nine sentence factors contained in §3553(a), the one that is missing from supervised release is §§(a)(2)(A): “the need for the sentence imposed – to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;”

So taking this factor out, supervision isn’t part of punishment and making a determination on whether to let a defendant off of his/her supervision prior to it’s full term CANNOT reflect on the seriousness of the original offense, or be part of the punishment of that offense. Even the Supreme Court concluded this in the 2000 case of Johnson v. United States which calls supervised release the “decompression state” between incarceration and full release.

Putting it all together

All of this logic pieces together very nicely.

  1. If terminating supervised release is a mild form of re-sentencing; and,
  2. If supervised release can’t be considered part of the punishment for a crime; and,
  3. If the sentencing judge cannot consider the seriousness of the original crime; and,
  4. Supervised release is intended to be the “decompression state” between incarceration and full release;

…Then it doesn’t matter what your crime was or who you were at sentencing. If you are out of prison, with stable home, job, support structure, etc. then the decompression period is over and there is no further need for supervision. A judge can’t just keep a defendant on supervision because the crime of conviction was [fill-in-the-blank], and that is good news for our clients.

To learn all about getting off of federal probation early, visit PCR Consultants.

Federal Supervised Release