By Maxine Bernstein
The Oregonian
PORTLAND, Ore. — At least 150 convicted bank robbers, felons with firearms and drug traffickers in Oregon are urging judges to throw out or reduce their federal sentences due to two recent U.S. Supreme Court decisions.
The offenders seeking relief had their prison time boosted because they were designated either as an armed career criminal or sentenced as a dangerous career offender.
Under the Armed Career Criminal Act, someone convicted of a federal firearms crime who has three or more previous convictions for a violent felony or a serious drug offense faced a minimum mandatory sentence of 15 years in prison.
Federal sentencing guidelines also allowed for added prison time for career offenders, those convicted of drug crimes or violent crimes who had two prior convictions for either a violent felony or drug offense.
Last summer, the Supreme Court held 8-1 in Johnson v. United States that part of the “violent crime” definition was unconstitutionally vague and denied defendants their due process rights.
This spring, the Supreme Court ruled that the Johnson decision applied retroactively to offenders sentenced before the June 26, 2015 decision came down.
As a result, Oregon’s chief deputy federal public defender Stephen Sady and his counterparts across the country scrambled to file dozens of motions on behalf of federal offenders. They urged courts to vacate or correct their sentences.
The motions had to be filed by June 26, 2016, the one-year anniversary of the decision.
So far, about 25 inmates in Oregon with federal convictions have been granted reviews of their sentences, with many waiting for their prison time to be reduced, Sady said. Dozens of requests are piling up on federal court dockets in Portland, Eugene, Medford and Pendleton, and across the nation.
“There’s literally thousands of offenders nationwide who are affected by this,” said Douglas Berman, a Ohio State University law professor who runs a Sentencing Law and Policy blog. Some 4,000 to 6,000 sentences nationally could be altered, according to estimates.
“The idea of the Armed Career Criminal Act was if you’re a big-time crook, we want to throw the book at you and give you 15 years,” Berman said.
But over time, criminal equivalents of the “Barney Fife bumbling low-level punk” who couldn’t seem to get his life together and kept getting arrested got caught up in the sentencing and were “slammed a little too hard to begin with,” Berman said.
The Supreme Court eliminated as vague and unconstitutional a section of law that prosecutors relied on to seek stiffer sentences for defendants they argued were particularly dangerous.
The last clause of the Armed Career Criminal Act described a violent felony as any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
Federal sentencing guidelines use nearly identical wording.
“It was very hard for judges to tell what it meant,” said David Debold, a lawyer in Washington, D.C., who served as an assistant U.S. attorney in Detroit for 17 years. “There were so many disagreements about how do you answer that. There was a lot of guesswork involved.”
While a lot of convictions are potentially impacted by the court rulings, it’s not like the “sky is falling,” Debold said. Even if federal inmates successfully convince a judge to resentence them, they may face less time but still not a drastic reduction, he said.
Sady agreed, adding, “It’s not saying these people are now getting a slap on the wrist.”
Yet prosecutors have cited concern that repeat offenders with prior convictions for everything from attempted kidnapping to compelling prostitution will now be eligible for significant sentence reductions.
Several offenders in Oregon already have convinced judges to shave off their time as a result of the Supreme Court rulings.
For example, Tyler Anthony Boyd, 38, who was initially sentenced in federal court in Medford in January 2009 to 15 years in prison for a felon in possession of a firearms conviction, wasn’t expected to be released from custody until June 2022.
Boyd had been sentenced under the Armed Career Criminal Act, which gave him the minimum mandatory sentence of 15 years in prison based on three prior burglary convictions. Late last year, he filed a motion arguing that his prior burglary convictions no longer qualified as violent felonies.
“Mr. Boyd is suffering irreparable harm from over-incarceration with each passing day. The Court has the authority to order immediate relief on the merits,” assistant federal public defender Brian Butler wrote in the motion.
Oregon’s U.S. District Judge Owen W. Panner agreed and dismissed Boyd’s 15-year sentence.
On June 27, he sentenced Boyd instead to two years and three months in prison. On June 29, Boyd was released from federal custody.
Ben Walter Hoopes, 58, convicted of robbing a Bank of America off Northwest Cornell Road in unincorporated Portland, was expected to remain in federal custody until January 2019, sentenced to eight years and four months as a career offender in 2012.
But Hoopes successfully challenged his sentence, citing the recent court decisions. Now he’s looking forward to his release from prison this December, after federal Judge Marco A. Hernandez shaved more than two years, or 29 months, off his sentence.
Hoopes had pleaded guilty to a single count of bank robbery in January 2012. On Oct. 21,2011 he demanded a Bank of America teller “place large bills on the counter now” and not to pull the alarm. He did not display a weapon and was caught at a nearby bar with the stolen $2,050 in his left sock.
Hoopes took a plea agreement. His sentencing guidelines were based upon his designation as a career offender because of two prior convictions -- a 1999 robbery conviction and his 2006 Idaho conviction for eluding a police officer.
The two convictions no longer are considered “crimes of violence,” under the Supreme Court rulings.
Absent that career offender designation, the federal guidelines for his sentence would have called for 57 to 71 months. On July 19, he was sentenced instead to 71 months, or 5 years and 11 months.
Another inmate, Steven Wayne Gentry, was convicted of three counts of bank robbery in April 2013. Under a plea deal, Gentry was sentenced as a career offender, based on a prior 1999 conviction for assault with a deadly weapon and a 2006 conviction for evading an officer. The parties then agreed that each of these prior convictions qualified as “crimes of violence.”
Gentry moved to challenge his sentence.
Prosecutors objected, arguing that his plea deal prevented the challenge, and any claim questioning his sentence should have been raised on a direct appeal.
Last month, Oregon’s U.S. District Judge Michael H. Simon ruled in favor of Gentry. Simon found that Gentry could challenge his sentence, despite his waiver of appeal. He cited case law from the 9th U.S. Circuit Court of Appeals, which states that a waiver of appeal “will not apply if the sentence violates the Constitution.”
“Gentry was originally sentenced under a framework that was ‘infected’ by the wrongful conclusion that Gentry should be sentenced as a career offender, an ‘error of constitutional dimensions,’” Simon wrote.
As a result, on July 28, Gentry’s sentence of 10 years was nearly cut in half, reduced to five years and 10 months in prison, according to court records.
Others are waiting for their sentences to be recalculated.
Earlier this year, the U.S. Sentencing Commission voted unanimously to amend the definition of “crime of violence” in the federal sentencing guidelines. The new definition, now in line with the Johnson Supreme Court ruling, became effective Aug. 1. The commission has urged Congress to adopt the new definition as well.
“If Congress itself doesn’t act to make the definition of the term ‘crime of violence’ clear and uniform, it is likely that courts will be required to do so on their own. Such a scenario risks continued inconsistency and complexity, and could lead to a definition that does not fully reflect the will of Congress,” the commission wrote in a report issued this month.