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Thursday Roundup

ACCA Update.  "Sentencing reform" is the current buzzword in criminal justice; after some hiccups, it does appear that some semblance of the Smart Sentencing Act, which lowers mandatory minimums for some drug crimes and allow judges more discretion in sentencing below the minimum, will get through Congress.  And the Supreme Court got into the action on that front back in June with its decision in Johnson v. US The Federal Armed Career Criminal Act adds fifteen years to a sentence if the defendant has three prior "violent" felonies.  What's a violent felony?  Certain ones are defined, and then there's a catch-all - the "residual clause" - which defines a violent felony as one that "involves conduct that presents a serious potential risk of injury." 

Johnson struck down the residual clause as being unconstitutionally vague.  That means if any of the convictions needed for the ACCA sentence were based on that clause, the sentence gets thrown out. 

Of course, that assumes the case is still pending or is on direct review.  That's the way these things work.  New decisions don't apply retroactively.  I worked with an attorney this weekend on an appeal in an ACCA case where the defendant was sentenced in March, and one of the convictions - discharging a firearm into a habitation - fell under the residual clause.  So that's good news for the client.  If he'd been convicted in March of 2014, and had his appeal, he'd have been out of luck.

Or maybe not.  The 7th Circuit just handed down a decision, Price v. US, permitting a defendant who'd been convicted in 2006 to file a 2255 petition (that's a habeas petition for Federal prisoners) arguing that Johnson voided his ACCA sentence.  (H/t to Sentencing Law & Policy.)  The law on when a decision is retroactive is complicated, but it basically boils down to whether the decision "announces a new substantive rule of constitutional law."  Interestingly, it was the government's position that Johnson did.  So if Price stands, expect the floodgates to open.

Cell towers.  I'm not sure if there's anyone in the country above the age of seven who doesn't have a cell phone any more.  So it's commonplace in criminal cases any more for the prosecution to subpoena all the defendant's cell phone records, then put some rummy on the stand to testify as to the location of various cell phone towers, and then use the data from the records to show that instead of being over on the other side of town as he told the police, the defendant was actually a block or so away from the crime when it happened.

The Fourth Circuit might have thrown a wrench into that.  Last week it handed down US v. Graham, holding that when the government "obtains and inspects a cell phone user's historical [cell-site location information] for an extended period of time," that constitutes a search, and requires a warrant.

That's huge, because it's not a simple matter to just substitute getting a warrant for issuing a subpoena.  A subpoena doesn't require probable cause; in fact, in many situations the prosecution has no idea what the records will show, if anything.  Getting a warrant would require the government to show probable cause to believe that the records would in fact produce some usable evidence, and what the basis for that belief is.

That's not to say that Graham will survive the long haul.  It was a split decision, and the Fifth and Eleventh Circuits have ruled that acquiring such records isn't a search.  It's likely headed to the Supreme Court.

This post over at the Volokh Conspiracy explains the reasoning behind the decision.  Obviously a split Fourth Circuit decision has no binding effect on Ohio courts, but it's an argument you need to be making if you've got a case where the prosecution obtained cell phone records.

Drones... they're not just for killing anymore.  No prison movie is complete without a scene where somebody smuggles something into the prison; the apocryphal file-in-the-cake being the original one.  (The laundry basket appears to be the preferred method of smuggling things - or people -- out of prison, although I've often wondered why guards couldn't tell that even a lot of sheets piled together don't weigh 200 pounds.)  And anyone who's done time in prison can tell you that this is a case of art imitating life:  stuff like drugs and tobacco get smuggled into prison all the time.

But technology marches on, and last week a drone flew over the Ohio prison in Mansfield and dropped off a package containing enough tobacco for about seven packs of cigarettes, enough marijuana for 70 joints, and topped it off with a batch of heroin which could be used for 100 doses.

Apparently, though, the delivery system needs a bit of work.  Instead of going to its intended target, the package fell in the middle of the prison yard, where it unsurprisingly led to a fight among the inmates.

In fact, that's how the prison officials learned of the drop:  they were watching surveillance video in their investigation of the fight.

No word on whether anti-aircraft guns are going to be as commonplace as razor wire in Ohio prisons from here on out.

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