THE LAW HAS CHANGED, UNDERWOOD’S SENTENCE MUST TOO!
William Underwood was arrested during the “war on drugs” era of the 1980’s. Having never been convicted of a felony, Underwood was part of the first wave of convictions made under the newly enacted federal sentencing guidelines, and was sentenced to a 20 year concurrent sentence plus mandatory life without parole.
Arrested at 34 years old in 1988, William Underwood was charged in the United States District Court for the Southern District of New York with six counts involving narcotics operations. After trial by jury, he was found guilty in a general jury verdict on four counts; specifically, 18 USC §1962(c) and (d) (RICO and RICO Conspiracy); 21 USC §846 (Conspiracy to violate narcotics statutes); and 21 USC §848(a) (Continuing criminal enterprise CCE).
The district court judge sentenced Underwood over his Sixth Amendment objections in accordance with the Federal Sentencing Guidelines, which became effective November 1, 1987. Underwood argued that the district court erred in sentencing him under a mere preponderance of the evidence standard to life without parole. Pre-Guidelines law would have allowed the judge discretion to impose a prison term of from 10 years to life. Because of the possibility of a lesser sentence, Underwood maintains that there must have been a specific jury determination beyond a reasonable doubt that his alleged conduct continued past November 1, 1987, the effective date of the Sentencing Guidelines. There was not. Indeed, a 1986 Federal Bureau of Investigation document stated “(d)ue to the lack of current updated information concerning [his] alleged activities, this case is being closed at this time.”
Today, Underwood is 60 years old, and for the past quarter of a century he has been seeking to have his Sixth Amendment challenge heard. But, according to the law he has exhausted all legal resources and has been denied access to the courts by the AEDPA (Anti-Terrorism and Effective Death Penalty Act). What makes Underwood's case unique is that every law that was used to deny his appeals has been overturned and today are now deemed unconstitutional by the US Supreme Court. On June 17, 2013 the Supreme Court in Alleyne v. United States ruled that because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an element that must be submitted to the jury. Justice Sotomayor, with whom Justice Ginsburg and Justice Kagan concurred, stated “I join the opinion of the court, which persuasively explains why Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79 (1986), were wrongly decided. Under the reasoning of our decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and the original meaning of the Sixth Amendment, facts that increase the statutory minimum sentence (no less than facts that increase the statutory maximum) are elements of the offense that must be found by the jury and proved beyond a reasonable doubt.”
William Underwood properly objected to his conviction as a violation of his Sixth Amendment rights under the US Constitution, at trial, at a special hearing in the district court, in his pre-sentencing report, at sentencing, on direct appeal and on first § 2255. Indeed, he may be the only prisoner in this country who made a Sixth Amendment challenge to the application of the Federal Sentencing Guidelines’ mandatory provisions, 10 years before Apprendi; 15 years before Booker, and 24 years before Alleyne.
We, at INPRISON, believe that Underwood was denied his Sixth Amendment Rights on all four counts of his conviction. We, at INPRISON, know that if Underwood had been convicted under the Guideline laws that exist today, he would likely have completed his sentence by now. William Underwood has displayed exceptional conduct in prison and has received no incident reports during his entire incarceration of over twenty five years. He has taken advantage of every educational and career development opportunity made available to him in prison. He tries to keep the younger guys in prison on track to stay out of trouble, and when they leave, to stay on track. He is a changed man and has accepted responsibility for actions that led to his incarceration. We, at INPRISON, believe that Underwood has more than served his time and should NO longer be trapped in legal limbo. Based on changes in the law, his sentence should be changed as well, to time served. We, at INPRISON, believe that Underwood Should Be Home By Now!
