An old friend of mine, Jose (Pepe) Ruvalcaba, just had a huge win in the U.S. Court of Appeals for the First Circuit in Boston this week. The Court held on Feb 15, 2022, that the district court erred when it denied Pepe compassionate release on the basis that it lacked the authority to apply the changes to the harsh penalty under 21 U.S.C. sec 851 made by the First Step Act of 2018. The Court said that the district court indeed had the power to grant Pepe relief. While I haven`t had a chance to digest the 44-page opinion and its separate opinions, let me give you some “inside info” on Pepe`s case, since I had worked on it for several years (and my many thanks to Rusty Marks, a brilliant legal mind, for taking over the case when I had to bow out).
I met Pepe many years ago when he wanted to get the mandatory life sentence off his back that the government forced the court to impose on him, simply because he exercised his constitutional right to a jury trial. Pepe was charged with distributing methamphetamine between Boston and California in the early 2000s. Because he had two prior drug convictions in state court, the feds threatened him with the “three-strikes” penalty under sec 851 — unless he pled guilty. That penalty requires a federal judge to impose a sentence of life in prison without parole, and the judge has no authority to impose anything less. Section 851 completely kicks the federal court out of the sentencing scheme in these cases, effectively making the prosecutor the sentencing judge.
But Pepe wouldn`t plead guilty. He insisted on his right to go to trial. When he was found guilty in 2008, he got hit with the three-strikes penalty and got the life sentence the government promised him for not pleading guilty. When California voters passed Proposition 47, reducing some drug convictions to misdemeanors back around 2014, this invalidated one of Pepe`s priors used to impose that life sentence. He filed another motion to vacate his sentence, now that he only had one qualifying prior drug conviction and wasn`t subject to the mandatory life sentence.
Judge O`Toole of the U.S. District Court for the Dist. of Massachusetts wouldn`t hear it. He said Prop 47 wasn`t retroactive so he couldn`t grant relief (other judges have disagreed on this point and have granted relief to people in Pepe`s position). He also said that the penalty under sec 851 was different and it only mattered that the prior conviction that was vacated by the state was valid at the time of Pepe`s federal sentencing. The debate continues over this reasoning, but Pepe was out of luck in the district court.
But then came the First Step Act of 2018, which reduced the sec 851 penalty and the narrowed the criteria needed to qualify. If Pepe were sentenced today, he could not get the life sentence. So he filed for “compassionate release” under the First Step Act`s changes to the compassionate release statute, 18 U.S.C. sec 3582(c)(1)(A). This change allowed prisons to file their own motions for relief. Before this, only the Federal Bureau of Prisons (BOP) could file for relief, which it hardly ever did. That`s why Congress changed the law to allow prisoners to file compassionate release motions, and thousands have been granted relief since the change was made.
Again, Judge O`Toole denied Pepe relief. This time he said that he lacked authority to consider the First Step Act`s changes to the sec 851 penalty because Congress didn`t make them retroactive. But the First Circuit now says this was wrong and has sent Pepe`s case back to Judge O`Toole for another look. United States v. Ruvalcaba, 2022 U.S. App. LEXIS 4235 (1st Cir. Feb. 15, 2022).
I`ve had the pleasure of working with Pepe on his case for many years now. I`ve come to know him personally and I sincerely believe he has shown that he deserves a second chance. The only reason he`s in prison at this point is because the government wanted to punish him for taking his case to trial, a common coercion tactic federal prosecutors like to use in order to coerce guilty pleas. Congress recognized this abuse by government prosecutors and has now removed that coercive tool by way of the First Step Act. But people like Pepe still languish in prison because Congress didn`t make the change retroactive to undo those unjust sentences forced on defendants by vindictive federal prosecutors.
You can show your support for Pepe and others by urging Judge O`Toole to do the right thing when the case gets back before him in court:
U.S. District Court
One Courthouse Way
Suite 2300
Boston, MA 02210-3002
Update (Oct. 1, 2022): The government has offered Pepe a deal for 20 years. The case is still pending Judge O’Toole’s approval.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.
