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Vol. 8, No. 24              Covering Cases Published in the Advance Sheets through June 11, 2001

Highlights of this Issue:

Supreme Court Decisions:

The "Savings Clause" under 28 U.S.C. 2255:

U.S.S.G. and Sentencing Issues:

Apprendi Watch:

We are moving!!!

There will be no issue of P&J next week because we are moving our offices. The next issue, to be dated June 25, 2001, will combine issues 26 & 27, and will be mailed in approximately two weeks. In the meantime, please note that our mailing address is changing to P.O. Box 11, Washington Bridge Station, New York, NY 10033; and our phone number will be changing to (212) 781-8685.

Zadvydas v. Davis, No. 99-7791 (U.S. Sup. Ct. 06/28/2001) (Justice Breyer)

In this case, a philosophically divided Supreme Court again placed sharp limits on the Governments ability to deny legal rights to immigrants who are facing deportation. By a vote of 5-to-4, the Court held that the Government cannot keep deportable aliens in detention indefinitely simply because it cant find a country willing to take them back. To put that decision in perspective, it is expected that the ruling will have an immediate impact on a minimum of several thousand immigrants who are being held in indefinite suspension (out of the more than 20,000 aliens currently in the custody of the INS).

The instant decision actually arose out of two prior cases: Zadvydas v. Underdown, 185 F.3d 279 (5th Cir. 1999) (P&J, 9/27/99) (Zadvydas I) and Ma v. Reno, 208 F.3d 815 (9th Cir. 2000) (P&J, 3/27/00) (Ma I). The first case involved one Kestutis Zadvydas, a resident alien who was born of Lithuanian parents in a displaced persons camp in Germany in 1948. When he was eight years old, Zadvydas immigrated to the United States with his parents, and he has lived here ever since. However, as noted by the Court: "Zadvydas has a long criminal record, involving drug crimes, attempted robbery, attempted burglary, and theft. He has a history of flight, from both criminal and deportation proceedings. Most recently, he was convicted of possessing, with intent to distribute, cocaine; sentenced to 16 years imprisonment; released on parole after two years; taken into INS custody; and, in 1994, ordered deported to Germany."

First, Germany refused to accept Zadvydas because he was not a German citizen. Then Lithuania refused to accept him because he was neither a Lithuanian citizen nor a permanent resident. In 1996, the INS asked the Dominican Republic (Zadvydas wifes country) to accept him, but this effort also proved unsuccessful. Still the INS continued to hold Zadvydas in custody beyond the normal 90-day period specified in 8 U.S.C. 1231(a)(6); and he filed for habeas relief in the district court, challenging his continued and indefinite detention. In October 1997, a Federal district court granted that writ and ordered him released under supervision. (See Zadvydas v. Caplinger, 986 F. Supp. 1011, 1027-1028 (E.D. La. 1997)). In the courts view, the Government would never succeed in its efforts to remove Zadvydas from the United States, thus leading to his permanent confinement, contrary to the Constitution.

The Fifth Circuit reversed in Zadvydas I, concluding that Zadvydas detention did not violate the Constitution because eventual deportation was not "impossible," good faith efforts to remove him from the United States continued, and his detention was subject to periodic administrative review. (Zadvydas I, id., at 297).

The second case involved Kim Ho Ma, who was born in Cambodia in 1977. When he was two, his family fled, taking him to refugee camps in Thailand and the Philippines and eventually to the United States, where he has lived as a resident alien since the age of seven. In 1995, at age 17, Ma was involved in a gang-related shooting, convicted of manslaughter, and sentenced to 38 months imprisonment. He served two years, after which he was released into INS custody. Because he had been convicted of an "aggravated felony," as defined in 8 U.S.C. 1101(a)(43(F), Ma was ordered removed. Cambodia, however, has no repatriation agreement with the United States; and so it refused to accept Ma back.

After the 90-day removal period expired in early 1999, the INS continued to keep Ma in custody, because it was "unable to conclude that Mr. Ma would remain nonviolent and not violate the conditions of release." In 1999 Ma filed a petition for a writ of habeas corpus under 28 U.S.C. 2241. A panel of five judges in the Federal District Court for the Western District of Washington, considering Mas and about 100 similar cases together, issued a joint order holding that the Constitution forbids post-removal-period detention unless there is "a realistic chance that [the] alien will be deported" (thereby permitting classification of the detention as "in aid of deportation"). (See Binh Phan v. Reno, 56 F. Supp. 2d 1149, 1156 (1999)). The District Court then held an evidentiary hearing, decided that there was no "realistic chance" that Cambodia would ever accept Ma, and ordered him released. The Ninth Circuit affirmed Mas release in Ma I, concluding that 1231(a)(6) did not authorize detention for more than a "reasonable time" beyond the 90-day period authorized for removal.

Zadvydas asked the Supreme Court to review the decision of the Fifth Circuit authorizing his continued detention; and the Government asked the Court to review the Ninth Circuits decision forbidding Mas continued detention. The Court consolidated both cases for argument, and decided them together. The majority framed the issue before it as "whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States."

By a narrow margin of 5-to-4, the majority held that under 1231(a)(6) the Government may hold a deportable alien beyond the normal 90-day period, but only for a period reasonable necessary to secure the aliens removal. "[T]o avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute."

Then, "for the sake of uniform administration in the federal courts," the majority adopted a six month period of detention as the "presumptively reasonable period" of detention." It held that the statute must be construed to presumptively preclude detention more than six months beyond the removal period unless the Attorney General can rebut the aliens showing that there is no significant likelihood of removal in the reasonably foreseeable future. "And for detention to remain reasonable, as the period of prior post-removal confinement grows, what counts as the reasonably foreseeable future conversely would have to shrink."

Writing for the majority, Justice Breyer emphasized that Congressional and Executive Branch power over immigration "is subject to important constitutional limitations." He acknowledged that "It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders. . . . But once an alien enters the country, the legal circumstance changes, for the Due Process Clause applies to all persons within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent."

Four Justices (Rehnquist, Kennedy, Scalia and Thomas) dissented. In one dissent, Justice Kennedy argued that the majority was unwisely substituting "judicial judgment for the executives discretion and authority," in effect establishing a rule that after six months "foreign relations go into judicially supervised receivership." Justices Scalia and Thomas joined in that dissent, but they went much further in a separate dissent written by Justice Scalia. He bluntly advocated throwing the key away: in his mind a "criminal alien" under a final order of removal has no constitutional right of release - apparently under any circumstances!

United States v. Peterman, 249 F.3d 458 (6th Cir. 2001) (Judge Norris)

This case is one of the few that we have seen to interpret the scope of the so-called "savings clause" of 28 U.S.C. 2255. While 2255 is the primary avenue for habeas relief by Federal prisoners protesting the legality of their sentences, Federal prisoners are also given a limited right, under the provisions of that "savings clause," to challenge the validity of their convictions or sentences under 28 U.S.C. 2241 if 2255 is "inadequate or ineffective to test the legality of [their] detention." The full language of that "savings clause" states:

"An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention."

The instant case involved a consolidated appeal by the Government of three separate district court cases in which three different district court judges from the N.D. Ohio granted habeas relief under 2241 and then sentenced each of the defendants to shorter terms of imprisonment than were originally imposed. All three defendants were part of a large cocaine conspiracy in Ohio; and all three pled guilty in 1990 to drug conspiracy charges. Two of the three were sentenced to 151 months in prison, and the third to 121 months, based on the sentencing courts determinations that they were responsible for the entire 50-to-150 kilos of cocaine attributed to the entire conspiracy.

In 1997, the Sixth Circuit reversed the sentence of another co-conspirator on a direct appeal, concluding that the district court had not made adequate factual findings to support the drug quantities attributed to him. When the three defendants in the instant case learned of their co-conspirators resentencing, they filed habeas petitions pursuant to 2241, arguing that there had been an intervening change in the law and that 2255 (whose one-year statute of limitations and restrictions on successive petitions barred their claims) was "inadequate and ineffective" to redress their claims. The district courts ordered a hearing on these defendants participation in the conspiracy, and all three defendants were resentenced based on lesser amounts of drugs. The two defendants who had originally received 151 month sentences received 63 and 60 months, respectively; and the defendant who had received 121 months received a new sentence of 46 months.

The Government appealed from the grants of habeas corpus relief to all three defendants, arguing that the district courts did not have jurisdiction over the 2241 petitions because the defendants had failed to demonstrate that 2255 was "inadequate or ineffective" within the meaning of the "savings clause."

The Sixth Circuit agreed with the Governments position. It reversed the grants of habeas relief and remanded the cases back to the respective district courts with instructions to reinstate the original sentences.

In so ruling, the Court relied on its earlier ruling in Charles v. Chandler, 180 F.3d 753, 756 (6th Cir. 1999), which held that if petitioners do not make a claim of actual innocence, they are not entitled to any relief through 2255's savings clause. The Court emphasized that "the circumstances in which 2255 is inadequate and ineffective are narrow, for to construe 2241 relief much more liberally than 2255 relief would defeat the purpose of the restrictions Congress placed on the filing of successive petitions for collateral relief. . . .

"As we explained in Charles, the remedy afforded under 2241 is not an additional, alternative or supplemental remedy to that prescribed under 2255. . . . [Furthermore] no circuit court has to date permitted a post-AEDPA petitioner who was not effectively making a claim of "actual innocence" to utilize 2241 (via 2255's 'savings clause') as a way of circumventing 2255's restrictions on the filing of second or successive habeas petitions." (Id., at 461).

Based on the foregoing, the Court then concluded that "[w]ithout determining the exact scope of the savings clause, we conclude that defendants claims do not fall within any arguable construction of it because defendants have not shown an intervening change in the law that establishes their actual innocence." (Id., at 462).

United States v. Lewis, 249 F.3d 793 (8th Cir. 2001) (Judge Alsop)

Under U.S.S.G. 5K2.11 (a "Policy Statement" that is entitled "Lesser Harms"), a sentencing court is permitted to depart downward from the otherwise applicable sentencing range under two separate and distinct circumstances: (a) when a defendant commits a crime "in order to avoid a perceived greater harm"; and (b) when the defendants conduct does not "cause or threaten the harm or evil sought to be prevented by the law proscribing the offense at issue."

Although that language would appear to provide a fertile ground for motions for downward departures, there is a dearth of case law on 5K2.11, and one gets little guidance about the scope of 5K2.11 from the few examples listed by the Sentencing Commission in its commentary on this provision. Most of the cases that we have seen focus on the circumstances provided for in the first paragraph of this section - even though that language is modified by the extremely stringent and limiting proviso that the circumstances involved "must significantly diminish societys interest in punishing the conduct, for example, in the case of a mercy killing."

This case deals with the broader language contained in the second paragraph of 5K2.11; and there are two examples cited by the Commission: where a war veteran possesses machine gun or grenade as a trophy or where a school teacher possesses a controlled substance for display in a drug education program. In a previous decision, the Eighth Circuit explained that this provision authorizes a reasonable departure for an act that is technically unlawful, yet not committed for an unlawful purpose. U.S. v. White Buffalo, 10 F.3d 575, 576-77 (8th Cir. 1993).

In the instant case, the defendant pled guilty to one count of being a felon in possession of a firearm (in violation of 18 U.S.C. 922(g)(1)) and one count of making a false statement to the ATF (in violation of 18 U.S.C. 922(a)(6)). As the Court explained: "The firearm in question is a family heirloom Sears and Roebuck 20-gauge shotgun, which Lewis inherited from his father. Lewis never purchased ammunition for the gun. Lewis was aware that because of his prior felony convictions he could not legally keep his deceased father's prized gun, therefore, he gave it to his son. Facing financial hardship and threatened with immediate disconnection of utilities, Lewis obtained possession of the shotgun for the sole purpose of pawning it to obtain cash to pay bills. Upon pawning the gun, Lewis received fifty dollars, which he used to pay utility bills." (Id., at 794).

A few days later, Lewis returned to the pawnshop to retrieve the shotgun. He was required to fill out an ATF form which asked, inter alia, whether he had ever been convicted of an offense punishable by a prison term exceeding one year. Lewis falsely denied his prior convicted and, after it was submitted to the ATF, he was denied clearance to reclaim the gun. He was subsequently indicted on the two counts to which he pled guilty. At sentencing, Lewis asked the district court to grant him a downward departure based on 5K2.11, claiming that his possession of the firearm and false statement on the ATF form "were not the kinds of harms that Congress envisioned when it enacted the law proscribing those offenses." (Id.).

The district court declined to grant Lewis any downward departure and sentenced him to two, concurrent terms of 77 months in prison (the low end of his sentencing range based on an offense level of 21 and a Criminal History Category of VI). Lewis then appealed his sentence, contending that the district court erroneously believed that it did not have any authority to depart on the count of making a false statement in connection with the acquisition of a firearm.

The Eighth Circuit agreed that it was unclear whether the district court understood that it had the authority to depart under 5K2.11, and thus it vacated the sentence and remanded for resentencing. In doing so, it instructed the district court that the legislative purposes of 922(a)(6) and 922(g)(1) were identical, and that 5K2.11 applies to both statutes. In fact, the Court broadly stated that "the sentencing guidelines allow a lesser harms departure when a person violates any statute, when the violation does not threaten the harm or evil sought to be prevented by the statute." (Id., at 796) (Emphasis added.)

QUOTE OF THE WEEK - The Supreme Court - 2000-2001 - A Retrospective

On July 2, 2001, Linda Greenhouse, the columnist from The New York Times who covers the Supreme Court, reviewed the highlights of the Supreme Courts latest term which ended on June 28, 2001. Among the items she noted were the following:

Scorecard Of Published Federal Criminal Cases Reviewed By Our Staff:


This Week

Year to Date

Since 1996

Courts of Appeal




District Courts




Copyright 2001 Punch and Jurists, Ltd.