Implementing Amendment 782–How the sausage is made in the small District of Nebraska

I have frequently thought that much of what we do is in the federal trial courts is like making sausage. What we do may not be pretty, but in the end the task is worth the effort.

Image credit: McGuire homestead

Image credit: McGuire homestead

Professor Doug Berman, the author of Sentencing Law and Policy, wrote the following last Friday about Amendment 782 to the Guidelines:

Hard core federal sentencing nerds know that November 1 is a special day because it is the official date on which any proposed changes to the sentencing guidelines proposed by the US Sentencing Commission become official in the absence of congressional rejection thereof.  Tomorrow, November 1, 2014, is especially notable because it will make official the most significant and consequential reduction in guideline sentencing ranges in history.  This USSC press release, which includes a statement from the chair of the USSC, provides background context for why this is such a big deal:

[Background:] The United States Sentencing Commission, an independent agency in the judicial branch charged with setting federal sentencing guidelines, voted unanimously in April to reduce sentencing guidelines levels for most drug trafficking offenses and voted unanimously again in July to make that change retroactive.  Because Congress has not acted to disapprove the Commission’s actions, the amendment becomes effective tomorrow.  Offenders sentenced after tomorrow will be sentenced under the new, reduced guidelines, and current prisoners may begin petitioning courts for sentence reductions based on retroactive application of the reduced guidelines. Prisoners can have their sentences reduced if courts determine that they are eligible and a reduction is appropriate, and they may not be released pursuant to such reductions before November 1, 2015.[Comment by USSC Chair Patti Saris:] “The reduction in drug guidelines that becomes effective tomorrow represents a significant step toward the goal the Commission has prioritized of reducing federal prison costs and overcrowding without endangering public safety.  Commissioners worked together to develop an approach that advances the causes of fairness, justice, fiscal responsibility, and public safety, and I am very pleased that we were able to agree unanimously on this reasonable solution.  I am also gratified that Congress permitted this important reform to go forward.

This amendment is an important start toward addressing the problem of over-incarceration at the federal level. Commission researchers estimate that applying the amendment going forward may reduce the prison population by 6,500 in five years and far more over time, while more than 46,000 current prisoners could be eligible to have their sentences reduced by retroactive application of the amendment.  Still, only Congress can act to fully solve the crisis in federal prison budgets and populations and address the many systemic problems the Commission has found resulting from mandatory minimum penalties.  I hope that Congress will act promptly to pass comprehensive sentencing reform legislation.”

Today, I will take a moment to describe the implementation of Amendment 782 in the District of Nebraska. We are a small district with a large criminal case load, especially including drug cases. As of June 30, 2014, on a per-judge basis, we ranked seventh in the nation and first in the Eighth Circuit for criminal cases. Indeed, Amendment 782 may impact over 700 offenders previously sentenced in our court. Behind the scenes, the implementation of Amendment 782 has had a huge impact on us as we try to fully and fairly implement this important retroactive change to the Guidelines.*

With 700 offenders potentially eligible for a sentencing reduction, our district decided that every potentially eligible offender would have his or her case individually scrutinized whether or not a motion had been filed and that every such offender would have a lawyer. After conferring with the United States Attorney, the Federal Public Defender and our probation office, we issued general (standing) orders.  For example, here is the general order that was issued for all judges (save for me**):



Capture11Capture12Four people are responsible for superintending the implementation of Amendment 782: two very senior United States Probation officers who are experts in the Guidelines; the head of the drug prosecution unit of the US Attorney’s office; and the Federal Public Defender. They have cooperated nicely, and have established internal operating protocols between them. After the Clerk’s office tracked down the whereabouts of each of the 700 or so offenders through the Bureau of Prisons (a huge task), the group of four sensibly decided upon a “triage” plan. Offenders who are eligible for release on the earliest possible date (November 1, 2015), get attention first. Offenders who are eligible later receive attention later.  

Ultimately, the Federal Public Defender, or one of his assistants or a Criminal Justice Act panel lawyer, will file a motion for relief when the group of four decide that the time is right. A probation officer will submit and file as a restricted document a worksheet that includes a calculation under Amendment 782 and the Guidelines. That worksheet will also include a report on the offender’s institutional adjustment and the probation officer’s recommendation about whether relief should be granted.

Here is an example of such a worksheet that has been scrubbed to mask the identity of the offender:




After the motion is filed, and the worksheet is submitted, the prosecutor and defense lawyer will confer and in most cases a stipulation will be reached. Assuming a stipulation is reached, it will be filed. After that, and without a hearing, relief will normally be granted. If no stipulation can be reached, then in my cases a hearing will be held. 

It is possible that a judge might tentatively conclude not to follow a stipulation. While I cannot speak for the other judges, in my cases, I will hold a hearing to give the parties an opportunity to be heard. Whether or not the defendant will be present at such a hearing has yet to be determined by me. In the past, if a dispute of fact arose and the offender could be expected to have unique knowledge of the facts, I have not hesitated to give the offender an opportunity to appear and testify. It is probable that I will follow the same approach for Amendment 782 factual disputes where the testimony of the offender is critical to the fair resolution of the matter. However, in the huge majority of cases, this will not be necessary.

In summary, the equitable and effective implementation of Amendment 782 requires a lot of “behind the scenes” work.  We are fortunate to have the cooperative, but always zealous, assistance of prosecutors and defense lawyers, aided by a probation office that is second to none. This is a very nice place to be an Article III judge, and the sausage is really quite good.



*For a great summary of the law prepared by the Federal Public Defenders, see here, entitled “FAQs: 2014 Amendments to USSG §1B1.10: Retroactivity of “Drugs Minus 2” (Amendment 782) and Sentence Reductions in Cases Involving Mandatory Minimums and Substantial Assistance.”

**My general order is nearly identical. It is slightly different in that I volunteered to take cases assigned to other judges who were visiting in Nebraska at the time of the original sentence or who are no longer able to take the cases due to death or retirement. I volunteered to do this to try to even the workload just a bit inasmuch as my colleagues had graciously stepped in big time to help me during my illness. While it hardly makes up for the work I dumped on others, it is a start.



23 responses

  1. Judge Kopf: Thanks for the informative post. In the district where I practice, I have seen a number of 11(c)(1)(C) agreements that give a two-level downward variance in anticipation of the guidelines changes. The sentencing Judge, before approving the agreement, will inform the Defendant that he or she is waiving any right to seek a downward variance once the changes become effective. This seems like a great way to get a head-start on what is surely going to be a painstaking and time-consuming task in my district, which is ranked #1 in the nation (according to the PDF you linked) for criminal felony filings. I wonder, though, if a Criminal defendant can bargain away a right that (at least until November 1st) he or she does not technically have. I imagine the question will be decided in the not-too-distant future. All best

  2. Yesterday was a special day,. The sad thing is the U.S. Sentencing Commission could have done this on Nov. 1, 1987 or anytime after – the fact that this took 27 years is perplexing. The current U.S. Sentencing Commissioners, and their superb chair, Judge Patti Saris, deserve great praise for the thoughtful, deliberate, careful and very transparent way they examined this issue. It is a modest but extremely important step to bring a greater measure of fairness an rationality to federal drug sentencing. I thank the Commission and it’s staff and pay them a strong measure of gratitude for their work on this.

  3. “I thank the Commision….” WTF???

    Any legal system ought to be able to get routine drug cases right. It’s like being proud of your ability to sink 18-inch putts. It took you more than a generation to sink one, and you’re patting yourselves on the back? SRSLY?!?

    How about bringing some transparency and care to civil rights cases? I can see you and Judge Kopf, writing poor civil rights plaintiffs: “We didn’t read your briefs because we were too busy surfing the Net and didn’t even know about the novel issues you rose, but we’re throwing your suit out because we can. If you thought we were self-important, lazy bastards, you ought to see the Court of Appeals.”

    You don’t give a flying fuck about the law-abiding people who never got their first chance because it feels better to give felons like Shon a second one.

    If there are so many “superb” people in our federal courts, why do you do such a horseshit job? And worse yet, why are you proud of it?

  4. JWB,

    We have been doing the same thing in Nebraska. That is, the government does not oppose a 2-level variance so long as the defendant agrees he or she does not get two bites of the apple. I am not worried too much about bargaining away a right that the defendant does not have because if the defendant were to back out of the agreement and seek another 2-level reduction under 782 I would deny it. Since the decision is discretionary with me whether to grant the reduction or not, I doubt I would have anything to worry about on appeal.

    Anyway, now that the Amendment is effective, we no longer have that problem.

    All the best.


  5. I do not think from what Bennett, J said and your reply that either of you have been over impressed by past history of drug sentencing in the Federal Courts, but the Courts do not make drug policy. If too much is left to law clerks it may be the weight of drug and other criminal matters which are among the causes. While I do not doubt Art’s expertise, I would be interested in some of these great legal theories that have been ignored. Even if the clerks are doing the reading they are not dense and most of the ones I taught over 42 years would have loved a brilliant new legal theory.

  6. Judge — any thoughts on why the District of Nebraska has so high per-capita criminal cases? Nebraska is not usually thought of as a den of lawlessness (at least not by me). Lots of trafficking stops on the highways? Especially zealous AUSAs? Or should I be glad I live in bucolic NYC and not crime-ridden Omaha?

  7. Judge The old ad law prof in me wonders, if you have announced a fixed rule in advance then are you exercising you discretion?

  8. Justin,

    The honest answer is that nobody knows for sure. Here are three of my guesses.

    In the late 1980s, when I served as a Magistrate Judge in Omaha, the black community was devastated by the crack epidemic. You could make a lot of money selling crack in Omaha.

    On the west coast word got out, and drug traffickers flocked to Omaha. The locals encouraged the feds to get very aggressive, and the feds responded as requested. That started the notion of federalizing drug crimes in Nebraska. That notion has persisted to the present day, and now concentrates on meth.

    Super labs in Mexico can make huge quantities of powerfully pure meth. Meth use, like crack use, spreads among relatively poor people. In rural Nebraska there are a lot of poor people who came to embrace meth. As with the crack, the feds were encouraged to federalize the response to meth and the feds responded just as they did with crack.

    Finally, Nebraska is a natural pipeline for drugs moving west to east. There are two components to this pipeline. The first and most obvious is Interstate 80. The second and less obvious reason is that there are huge packing plants that exist in Nebraska and that rely upon labor from south of the border. The cartels are aware that these packing plants attract poor Mexicans or others from central American countries. It is easy to recruit (by threats or money) these workers to transport meth from the border to Grand Island or Lexington or other cities with large packing plants. Once there, some of the meth is sold to the locals and some of the meth moves east to Chicago or elsewhere.

    All the best.


  9. repenting lawyer,

    Almost no one thinks that the sentences handed down for drugs in the past are too lenient in the great majority of the cases. As a consequence, it is probably true that most offenders will get relief but not because we have given away or discretion.

    All the best.


  10. My question was whether the automatic denial rule for the second bite seeker amounts to a precase denial of discretion? Response misses the issue though it was mostly a non serious question. I have lived through enough ups and downs of sentence lengths and changes in drug sentencing policy that I have lost the ability to take any sentencing [policy seriously.

  11. repenting lawyer,

    At least for me, Art is wrong. I handle all my criminal sentencing matters by myself. My law clerks don’t help. I don’t use “scripts” prepared by law clerks and I do my own research on disputed legal questions. If I issue an opinion, I write the opinion myself. The law clerks simply have nothing whatever to do with sentencing in my court. If I screw up at sentencing, as I frequently do, that is all on me, and me alone.

    All the best.


  12. repenting lawyer,

    Perhaps you are right, but I think not. Amendment 782 was written so you get the benefit of it only once. Adhering to that rule does not seem to me to be a problem. In a “second bite of the apple” case, I will listen but if the argument is predicated upon some notion that “I couldn’t give up a right I did not then have” I am likely to chuck it ’cause the argument stinks. (“Your argument stinks” is a legal concept that I developed over the years).

    All the best.


  13. Your argument stinks is what provokes lawyers to remember the great legal doctrine of ah shit invented by Learned Hand.

  14. This is what you get when you have to run for judicial office. You come out and tell people what a great job you do, and disgruntled ex-customers pop out of the woodwork.

  15. Art: “How about bringing some transparency and care to civil rights cases?”

    RGK: ” I handle all my criminal sentencing matters by myself. My law clerks don’t help.”

    Upon reading this blog for some time, I have no question regarding your diligence in the management of criminal matters, Judge Kopf. (I have no idea how Judge Bennett comports himself, and express no opinion on it.) But that is a different kettle of fish.

    When it comes to civil rights cases, Judge Gertner admitted that federal judges are literally trained as to how to get rid of them. How many abuses of Rooker-Feldman have we encountered in the past two or three decades? We all know how it is done. Fudge a fact or two, deliberately misread the controlling law … and voila! Summary judgment!!! Bivens actions exist only in theory.

    Maybe things are different in the Eighth Circuit, where Judge Arnold decided fifty appeals in two hours. And you did admit yourself that you read briefs only rarely. If a case should turn on a fine point of law in one of those briefs you didn’t bother to read, you shrug it off as a “mistake.” But you don’t have to live with the consequences of that mistake. A man might spend twenty years paying for YOUR “mistake.”

    Criminal matters are handled with some care. Civil rights cases, not so much. And that was what Art is complaining about.

  16. I can think of one right off, which Professor Suja Thomas is probably the world’s foremost expert on: “Can a court issue a summary judgment in a case where a jury trial was demanded, the judge can be presumed to be biased, and the law is not settled?”

    What was unique about the common law jury trial? The jury decided the facts and the law. Jefferson explained its importance:

    But we all know that permanent judges acquire an Esprit de corps, that being known they are liable to be tempted by bribery, that they are misled by favor, by relationship, by a spirit of party, by a devotion to the Executive or Legislative; that it is better to leave a cause to the decision of cross and pile, than to that of a judge biassed to one side; and that the opinion of 12 honest jurymen gives still a better hope of right, than cross and pile does. It is left therefore to the juries, if they think the permanent judges are under any biass whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.

    The signal feature of the jury trial in 1789 was that the jury decided both the law and the facts. As summary judgment takes the right to decide the law away from the jury, it deprives the plaintiff of the benefit of a Seventh Amendment jury trial and therefore, is unconstitutional (Prof. Thomas has written extensively on this point, and I concur with her conclusions).

    The plaintiff was trying to enforce the Article III good behavior clause, in accordance with well-established English common law precedent. There is a compelling argument to be made for the right of the citizen to do so, and the standards of good behavior at common law are clear. See Raoul Berger, Impeachment of Judges and “Good Behavior” Tenure, 79 Yale L. J. 1475 (1970). Juries decided the claims (mostly, leveled against other agents of the Crown), but English judges invoked it as a defense against a king’s attempt to remove them at will. As Berger pointed out, there is no established precedent here, and no case has surfaced in the past 40 years.

    If the plaintiff ever got thay case to a jury, the judges would be pounding pavement the next week, and those judges would not be alone. It is a textbook case of federal judges putting their own interests above the law, and a novel and constitutionally compelling case being quashed via judicial fiat.

    Is that one novel enough for you? I know of many others.

  17. Perfesser Thomas;s theory is hardly buried in unread briefs in per se civil rights cases. Certainly in criminal cases the jury are the practical judges of the law if they figure that out. More skeptical about civil cases though Maryland seems at least in theory to give jurt y the power. But seems a little strange to totally redo civil pro because of one professors reading in the world of legal history.

  18. RL, you are either interpreting the Constitution or rewriting it.

    Either Thomas’s reading of the 7Am is right, or it is wrong.

    Either the Good Behavior Clause is enforceable by an aggrieved litigant, or it is not.

    Appellate courts are supposed to answer questions like these, are they not? When you can marshal scholarship of this caliber in support for your position, one can hardly call it frivolous. (I’d like to see you call Suja Thomas (who posts here) a nut-job to her face, and try to back it up.) Certainly, this one qualifies as a sound legal theory “that [has] been ignored” by the courts. AMP called bullshit on you, and has backed it up.

    The 7Am did not say “the right to trial by jury is whatever the judges say it is supposed to be.” It reads: “the right to trial by jury shall be preserved. If in 1791, that meant that juries decided the law, then that is what a litigant is legally entitled to when she demands a jury trial. You can’t fit the square peg of summary judgment into that round hole. And if the Framers intended to apply the English concept of “good behavior” tenure to judges, they did, and federal courts are bound by sworn duty to honor the demand. If it means that we have to re-learn CivPro, it does.

    We all know how it works. When a judge doesn’t like an outcome, you could truck the entire United States Reports in on a flatbed to no avail. Federal judges have, as a class, become hopelessly corrupted and besotted by power. We see “the sausage” being made, and it is not a pretty picture.

    Even laymen can figure out when they’ve been jobbed.

  19. Curmudgeon, I did not say Thomas the prof was frivolous but your passion for certainty does not fit well with a Constitution that is changed with each new historical argument from the academy. Historical arguments in the hand of lawyers tends to produce competing law office history and as the Second Amendment demonstrates there is enough history for both side to write long books. I fear you will turn the Constitution into something like historical Jesus studies in which each new text from Egypt produces a new Jesus, and less Karen King blogs here I do not think she is frivolous. History does not offer the one right answer though it may limit the reasonable answers.
    for certainty

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