Opinion and Order

Argument: Case started out as an excessive sentence case (the two §851s that created life mandatory mininum wouldn't apply today), but due to bad case law in Sixth Cicuit, attorney Chloe Smith smartly pivoted to more traditional/COVID arguments. After Judge Danny Reeves in the EDKY denied the motion, Chloe appealed the denial of the CR motion to the Sixth Circuit. 

The Sixth Circuit reversed and remanded the district court’s denial of compassionate release to a 90-year-old, terminally ill, bedridden defendant serving mandatory life for non-violent marijuana offense that would only be subject to a 10-year mandatory minimum today. In reversing, the Sixth Circuit found that the “district court’s analysis of the 18 U.S.C § 3553(a) factors leaves us “ ‘with a definite and firm conviction that the district court committed a clear error of judgment.’ ”

By overly emphasizing Estrada-Elias’s history of nonviolent crimes, ignoring the low likelihood that Estrada-Elias will re-offend, and mischaracterizing the reality of the gap between Estrada-Elias’s present and prior convictions, the district court engaged in a substantively unreasonable balancing of the § 3553(a) factors and therefore abused its discretion.

The court reversed and remanded for Judge Reeves to make a finding on extraordinary and compelling reasons prong, which it has assumed applied without actually holding as such.  

10th Circuit Opinion Reversed and Remanded on Jurisdiction in U.S. v. McGee

Argument: Reversing and remanding a district court's determination of its lack of jurisdiction to consider a compassionate release motion based on a broader reading of "extraordinary and compelling reasons."

U.S. v. Maumau 20-4056 (10th Cir. April 1, 2021) appealed from No. 2:08-CR-00758-TC-11 (D. Utah)

Argument: Joining the Second, Fourth, Sixth and Seventh Circuits in affirming a district court's grant of compassionate release based upon a more expansive reading of "extraordinary and compelling reasons" – here, the First Step Act's elimination of § 924(c)’s stacking provision.

Opinion from the Eleventh Circuit 

Argument: Eleventh Circuit Creates Circuit Split on Compassionate Release Criteria: In a lengthy opinion, the Eleventh Circuit split from seven sister circuits to hold that Sentencing Commission Policy Statement 1B1.13 remains applicable for a Section 3582(c)(1)(A) motion, "no matter who files it." In other words, in the Eleventh Circuit, district courts are now constrained by the restrictive definitions of “extraordinary and compelling reasons” listed in the commentary of § 1B1.13.

President Lisa Wayne's written statement to the U.S. Sentencing Commission regarding sentencing practices since the U.S. v. Booker decision.

NACDL President Chris Adams' letter to the New York state legislature regarding proposals to truly implement review of excessive sentences, suppression rulings, and streamlining the assignment of counsel in appeals as outlined in A5687/S1280, A5688/S1281, and A5689/S1279, respectively (2021).

Letter to the Judicial Conference Committee on Practice & Procedure regarding proposed rule changes to the Federal Rules of Appellate Procedure.

Letter to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed changes to procedures in the Foreign Intelligence Surveillance Court.

Template SCA Privilege Motion, by Rebecca Wexler 

"It is quite true that there is enough difficulty in appealing as it is; but if there is to be no appeal at all possible the system would be intolerable." -L.J. Bowen

Appellate work is time-consuming, complex, and meaningful both for our clients and for creating precedent. Find helpful resources on appeals here.

What should a defense attorney do when a client pleads guilty, signs an appeal waiver, and then wants to appeal after sentencing? Obey the client and file a notice of appeal.

A great deal of folk wisdom surrounds the characteristics of a successful appellate brief. It is said that shorter briefs and fewer issues lead to greater appellate success. One of the “gurus” of legal writing recommended that issue statements not exceed 75 words. Some claim that simple, short arguments are more effective than longer ones. Many attorneys believe that an appellant who files a reply brief will be more successful than an appellant who does not. Several hypotheses arising from all this advice have been tested. The results call into question most of the folk wisdom.

When the United States Loses in a Criminal Case: The Appeal Process.

A Champion article on the role of cognitive bias and its influence on forensic evidence, and what a defense attorney should consider in the interpretation of evidence. 

Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (on petition for writ of certiorari).

Argument: It is emphatically the province and duty of the judicial branch to say what the law is, not what the law was. But in the Eleventh Circuit, petitioner and scores of other defendants like him have their cases decided on the basis of law otherwise recognized as repudiated by intervening precedent from this Court. Alone among the circuit courts, the Eleventh Circuit requires direct instruction from the Supreme Court to revisit its prior precedent; without it, rationale widely considered clearly erroneous in light of subsequent Supreme Court case law is still applied to defeat defendants’ appeals. Because the Eleventh Circuit’s internal rules require Supreme Court precedent to be “directly on point” to allow reconsideration of its past case law, it takes a narrower view of Supreme Court rationale than does this Court. Where, as in this case, a court acknowledges that the Supreme Court’s intervening rationale is “at odds with” its binding precedent and yet forecloses argument on the issue, a defendant’s due process right to a meaningful appeal is violated. Review is warranted because the Eleventh Circuit's practice is impermissible and inconsistent with all other circuits. The problem is important, recurring, and squarely presented. For this reason, and those in the petition, the Court should grant certiorari.