Sentencing Advocacy and the Bureau of Prisons: Ten ...

Sentencing Advocacy and the Bureau of Prisons: Ten Practice Pointers

Stephen R. Sady Chief Deputy Federal Public Defender, District of Oregon

New Orleans, Louisiana September 17, 2015

List of Documents:

1. Ten practice pointers on BOP sentencing advocacy Powerpoint ....................................... 1 2. Federal Sentencing Reporter article on concurrent and consecutive sentencing .............. 13 3. Memorandum on habeas corpus litigation and BOP advocacy ........................................ 20 4. Federal Defender response to GAO report on BOP implementation of ameliorative

statutes............................................................................................................................... 29

Sentencing Advocacy And The Bureau Of Prisons:

Ten Practice Pointers

Presented by Stephen Sady Chief Deputy Federal Public Defender, District of Oregon

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1. Second Chance Act Expansion Of Community Corrections

? 18 U.S.C. ? 3624(c) expanded available pre-release community corrections from 6 to 12 months, with up to 6 months or 10% of the sentence in home detention, whichever is less.

? For RDAP participants who are not eligible for the sentence reduction under 18 U.S.C. ? 3621(e), part of the incentive is "consideration for the maximum period of community corrections" (28 C.F.R. ? 550.54(a)(1)(ii)(2013)).

? Get rid of detainers for community corrections and participation in RDAP.

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2. Residential Drug Abuse Program ? Sentencing

? Up to one year sentence reduction is available for non-violent offenders under 18 U.S.C. ? 3621(e).

? Document substance abuse and seek a judicial recommendation (if you're sure client wants RDAP).

? Clean up guns and priors if possible in the presentence report. ? Object to lengthening sentences to accommodate under RDAP under Tapia v. United

States, 131 S. Ct. 2382 (2011).

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3. Detainer Litigation For Participation In RDAP

? 1995: Participation and sentence reduction available for all "eligible prisoners" ? 1996: No sentence reduction available if not eligible for community corrections ? 2009: No participation available if not eligible for community corrections ? Potential litigation ? Under ? 3621(e)(1)(C) (the BOP shall provide participation in

residential substance abuse treatment "for all eligible prisoners")

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4. Federal Boot Camp Analogue ? Sentencing

? Congress and the Commission okayed the program for non-violent offenders: 30 month sentence could be served by six months boot camp, six month sentence reduction, the rest of time in community corrections.

? The BOP abolished the program in 2004. ? For non-violent clients at 30 months, try to structure six months in custody plus six

months in a halfway house, the rest on supervised release with community service. ? Congress and the Commission have already found that the boot camp structure is

sufficient but not greater than necessary punishment for qualifying defendants.

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5. Good Time Credits On Concurrent Time ? Sentencing

? Because BOP gives no credit for pretrial time credited to another sentence under 18 U.S.C. ? 3585 (b), concurrency can be achieved by an adjustment under U.S.S.G. ? 5G1.3(b) or departure under ? 5G1.3(c) or ? 5K2.23.

? The BOP provides no good time credit against the adjusted time, as held in Schleining v. Thomas, 642 F.3d 1242 (9th Cir. 2011).

? But in litigation, BOP conceded variance for good time credits is appropriate.

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