The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com
This morning I posted some Supreme Court news, but I missed the big cert grant from this District. Congrats to Andy Adler and Michael Caruso. The case is Kemp v. United States.
The issue presented is: "Whether Federal Rule of Civil Procedure 60(b)(1) authorizes relief based on a district court’s error of law."
The 11th Circuit opinion ruling against the defendant is here.
This isn't their first trip to SCOTUS. Adler argued last term in Terry v. United States.
She does so (joined by Justice Barrett) in this statement respecting the denial of certiorari.
It is the responsibility of the Sentencing Commission to address this division to ensure fair and uniform application of the Guidelines. Cf. Braxton v. United States, 500 U. S. 344, 348 (1991). In March 2021, I wrote concerning an unresolved Circuit split over the proper interpretation of a Guideline. See Longoria v. United States, 592 U. S. ___. The Sentencing Commission lacked a quorum of voting members then, and it still does today. At this point, the Sentencing Commission has not had a quorum for three full years. As the instant petition illustrates, the resultant unresolved divisions among the Courts of Appeals can have direct and severe consequences for defendants’ sentences. I hope in the near future the Commission will be able to resume its important function in our criminal justice system.
Magistrate Judge John O'Sullivan officially retired today, after serving on the bench since 1999 (before that, he was a prosecutor, where he led the Court Broom case).
One of the good guys on the bench, that's for sure. Despite COVID, there was a nice reception for him at the Ferguson building this afternoon. Judge O'Sullivan was drinking from a huge mug of beer with ice.
My selfie game wasn't on point though:
BY MICHAEL CARUSO
As David’s loyal readers know, Judge Seitz (and Judge Ungaro and now with Judge Reid) has presided over the district’s CARE Court for the last several years. The “Court Assisted RE-entry” program recognizes that the transition from prison to the community is challenging. The program’s mission is to ensure returning citizens’ successful reentry into the community, reduce recidivism, and enhance public safety. CARE works to achieve these goals by educating the community on the complex issue of returning citizen reentry and by forming collaborative partnerships with service providers. The program seeks to address the many complex barriers returning citizens face when reentering society in such areas as employment, housing, education, medical and mental health, substance abuse, family reunification, and social networks.
Work and employment are crucial to success. Returning citizens need work for the same reasons as everyone else: to support themselves and their loved ones, pursue life goals, and strengthen their communities. To this end, many try to start their own businesses.
Over the holidays, I came across this cookie company started by a person who honed his baking skills in prison. My order—Nutella Chocolate Chip—was fantastic. Many other companies were founded or employ returning citizens. In the new year, consider patronizing these businesses and lend a helping hand.
Also, in the new year, you could do worse than following this advice from the late Joan Didion:
“I’m not telling you to make the world better, because I don’t think that progress is necessarily part of the package. I’m just telling you to live in it. Not just to endure it, not just to suffer it, not just to pass through it, but to live in it. To look at it. To try to get the picture. To live recklessly. To take chances. To make your own work and take pride in it. To seize the moment. And if you ask me why you should bother to do that, I could tell you that the grave’s a fine and private place, but none I think do there embrace. Nor do they sing there, or write, or argue, or see the tidal bore on the Amazon, or touch their children. And that’s what there is to do and get it while you can and good luck at it.”
HAPPY NEW YEAR!
Season 4 of For the Defense continues today with Mark Geragos for Susan McDougal. You can check it out on all podcast platforms (including Apple, Spotify and Google. All other platforms can be accessed on this website.) We launched a few weeks ago with Bruce Rogow (2 Live Crew and Luther Campbell)
The Chief Justice issued his year end report here. It starts with a feel-good story about the judiciary and former Chief and President Taft. Then, Justice Roberts discusses 3 areas that the judiciary is focused on for 2022: 1) financial disclosure and recusal obligations; 2) inappropriate behavior in the judicial workplace; and 3) judicial assignment and venue for patent cases. I wonder how many of you were waiting on pins and needles for that third one! I bet it keeps you up at night, doesn't it?
Meantime, we have lots of work to do in the criminal justice system. As an example, 10 years is certainly better than 110. But 10 years for an accident is still obscene. From CNN:
Colorado Gov. Jared Polis is commuting the sentence of a truck driver who was sentenced to 110 years in prison for an interstate wreck that killed four people, he announced Thursday, calling the sentence "highly atypical and unjust."Rogel Aguilera-Mederos will now serve a 10-year sentence and will be eligible for parole on December 30, 2026, according to a clemency letter Polis wrote to him.Rogel Aguilera-Mederos will now serve a 10-year sentence and will be eligible for parole on December 30, 2026, according to a clemency letter Polis wrote to him.Aguilera-Mederos was convicted in October on four counts of vehicular homicide and 23 other charges related to the fiery crash, according to Colorado's First Judicial District Attorney's Office.
He was driving a semi tractor-trailer in April 2019, traveling at 85 mph, when the brakes failed, he told investigators at the time. He tried to pull over to the shoulder to avoid stopped traffic, but another semi had already stopped there, according to an arrest affidavit.
The crash led to a 28-car pileup that left four dead, the Lakewood Police Department said at the time. Killed were Miguel Angel Lamas Arellano, 24; William Bailey, 67; Doyle Harrison, 61; and Stanley Politano, 69."The length of your 110-year sentence is simply not commensurate with your actions, nor with penalties handed down to others for similar crimes," Polis wrote in the clemency letter.The lengthy sentence had drawn national scrutiny, with celebrities like Kim Kardashian West calling for a lesser penalty. More than 5 million people signed a petition asking the governor to reduce Aguilera-Mederos' sentence.In his letter, Polis wrote the "arbitrary and unjust" sentence was "the result of a law of Colorado passed by the legislature and signed by a prior Governor and is not the fault of the judge who handed down the mandatory sentence required by the law in this case."During Aguilera-Mederos' sentencing hearing earlier this month, Colorado District Court Judge A. Bruce Jones said he was bound to the mandatory-minimum sentencing laws in the state, according to CNN affiliate KMGH.
I hope everyone has a healthy and safe new year's weekend. Here are some of the things I'm wishing for in 2022:
1. Judges who are flexible with schedules since COVID has messed everything up.
2. Prosecutors who are open to self-surrender even when a defendant is not cooperating.
3. Early exhibit lists.
4. Early Jencks.
5. Searchable discovery.
6. Appellate judges who find errors not always harmless.
7. Defense lawyers who represent cooperators not saying "you know I can't let him speak to you."
8. Variances. Big ones.
9. Judges willing to dismiss B.S. cases and not "letting the jury decide."
10. Less stress.
A guy can hope. Anyway, thanks for your tips, your comments, and for reading. Onward!
That's the title of this piece by Carrisa Byrne Hessick. Read the whole thing. It starts like this:
The Bill of Rights exists to protect individuals. It protects the right to free speech, the right to due process, the right to counsel, and the right to be free from cruel and unusual punishment, just to name a few. If a government official tries to deprive an individual of one of those constitutional rights, then the courts are supposed to intervene.
But that’s not what happens when it comes to one of the most important rights for criminal defendants—the right to a jury trial. Instead of protecting defendants’ right to have their guilt or innocence decided by their peers, judges routinely punish defendants for exercising that right. Specifically, judges regularly impose longer sentences on those defendants who insist on going to trial than on those defendants who plead guilty. A 2018 report shows that, on average, defendants who insist on a trial receive sentences three times longer than those of defendants who plead guilty. This practice is so common that it even has a name: the “trial penalty.”
The executive branch of government has followed the courts’ lead; many prosecutors pressure defendants to bargain away their right to a jury. They will offer defendants concessions—such as dropping some criminal charges or recommending leniency at sentencing—in return for a guilty plea. Plea bargains dominate the system. Only 3 percent of convictions are the result of a trial—the rest come from guilty pleas. As the Supreme Court put it, “Criminal justice today is for the most part a system of pleas, not a system of trials.”Legislators, too, help prosecutors gut the right to a trial by passing new laws with mandatory minimum sentences. Those laws give prosecutors more leverage in plea bargaining because they can offer defendants a deal in which they plead guilty to a lesser charge that doesn’t have a mandatory minimum. In some cases legislators have admitted that they voted for those mandatory minimums in order to give prosecutors greater sway. For example, in 2015, Senator Chuck Grassley successfully blocked efforts to lower the mandatory minimum sentences for federal drug crimes. Grassley opposed changing those sentences, because he thought the harsh drug laws served the “intended goal” of pressuring defendants to cooperate with law enforcement.
The pressure that defendants face can take the form of years in prison. For example, when Mohamed Taher was accused of importing and distributing marijuana in upstate New York, prosecutors offered him a 10-year sentence in return for a guilty plea. Taher turned down the plea bargain, and prosecutors responded by filing new charges carrying a mandatory minimum sentence of 22 years. Taher went to trial, and although he had been unarmed and committed no violent crimes, he was sentenced to 25 years in prison. In effect, Taher received an additional 15 years in jail for insisting on his right to a jury trial.
If government actors tried to put people in jail because they exercised other rights—such as the right to free speech, the right to belong to a church, or the right to vote—judges would quickly step in and stop that practice. Yet not only has the Supreme Court allowed the trial penalty and plea bargaining; it has actually encouraged them.
Some proponents say that the trial penalty doesn’t punish people for exercising their right to a trial; it just grants a benefit (a shorter sentence) to those who are willing to plead guilty. Personally, I don’t see how putting someone in jail for longer because she insisted on her right to a jury trial can be recharacterized as a benefit to some other defendant who pleads guilty. But even if it were a benefit, that shouldn’t make a difference as a constitutional matter. The courts don’t usually let government officials force you to waive your constitutional rights in order to get something in return. If, for example, the federal government told you that you have to give up your right to vote in order to get Social Security benefits, judges would say that was an “unconstitutional condition” and declare the practice unlawful. But judges haven’t extended their unconstitutional-conditions doctrine to plea bargaining or the trial penalty.The reason that the Supreme Court gives for carving out the jury-trial right from its ordinary constitutional rules is simple: resources.
