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A 2-1 panel of the D.C. Circuit found ineffective assistance of counsel for failure to seek a continuance of sentencing that was about to occur in the short interval between the Fair Sentencing Act’s (“FSA”) passing Congress and its being signed into law.

In a split opinion featuring an interesting alignment (Circuit Judges Rogers and Griffith comprising the majority with Circuit Judge Brown vigorously dissenting) the Circuit overturned Appellant’s ten year mandatory minimum sentence for possessing 68 grams of crack cocaine. The majority found that Abney satisfied the rigorous standards of Strickland v. Washington, 466 U.S. 668 (1994), to justify setting aside his sentence. Abney’s trial counsel knew that the FSA (Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010)) had just cleared Congress and that its provisions would cut Abney’s mandatory minimum in half, from ten years to five years. It was also clear at the time that numerous defense lawyers were seeking continuances of scheduled sentencings until the FSA became law, to take advantage of the Sentencing Reform Act’s (“SRA”) provision that the applicable Sentencing Guidelines are those applicable at the time of sentencing, not the time the offense was committed. “Any competent criminal defense attorney familiar with federal sentencing principles would have understood that courts were reasonably likely to read the FSA’s lower mandatory minimums to apply to defendants sentenced after its enactment.” (slip op. at 2-3).

And yet, even though Abney was incarcerated and posed no danger to the public, and notwithstanding a wealth of contemporaneous evidence – all painstakingly noted by the majority (slip op. at 3 n.1) – that the President intended to sign the measure into law, trial counsel failed to seek a continuance of Abney’s scheduled sentencing, which occurred one day before the FSA became law. The fatal flaw, the majority found, was that counsel mistakenly believed legislation was necessary for the FSA to apply retroactively, and didn’t understand that under the SRA, Abney stood to benefit greatly by being sentenced just a few days later, because the FSA’s more generous provisions would govern his sentencing. (slip op. at 5-6). If any further proof of prejudice to Abney was necessary, it was apparent in the district judge’s comment at sentencing that if it had any discretion, it would have sentenced Abney to a term somewhere between the about-to-become new and the about-to-expire mandatory minima. (slip op. at 6).

The underlying case then underwent a series of procedural twists and turns. Shortly after the Sentencing Commission made retroactive new Guidelines governing the crack-to-powder sentencing disparity and reducing mandatory minimum sentences, Abney – now represented by a new lawyer – filed an unopposed motion under 18 U.S.C. § 3582(c)(2) and 28 U.S.C. § 2255 to reduce Abney’s sentence. Somewhat surprisingly, the district court overruled the unopposed motion and refused to consider Abney’s ineffective assistance claim. (slip op. at 8-9). Abney, this time represented by pro bono appointed counsel, filed a motion to reconsider under Rule 59(e), F. R. Civ. P. Abney argued that no competent lawyer could have neglected to ask for a continuance of sentencing under the circumstances. After the district judge again refused to grant Abbey relief, new counsel persuaded the Court of Appeals to grant a certificate of appealability on the issue of ineffective assistance. (slip op. at 8-9).

Applying a de novo standard of review of the decision to deny reconsideration on the merits, the panel majority then addressed whether review of a claim of ineffective assistance was governed by de novo or for abuse of discretion. The majority then “made explicit” that such a claim warranted de novo review and, in so doing, aligned the Circuit with the weight of authority. (slip op. at 11-12) (citing cases).

Moving to the merits, the majority found that Abney had overcome the so-called strong presumption that counsel had employed a sound strategy and had convincingly demonstrated that “there [was] no conceivable strategy that would justify the failure of [former] counsel to seek a continuance of sentencing” and that counsel’s “failure stemmed from his unfamiliarity with the existence of more than one reasonably likely interpretation of the FSA.” (slip op. at 13-14). If anything, the court explained, “[t]he FSA’s significant reduction in the mandatory minimum faced by Abney provided sufficient grounds to pursue the reasonably likely interpretation that the reduction would apply to offenders sentenced after the date of its enactment . . . .” (slip op. at 14-16). Counsel’s failure to seek a continuance, the majority explained, appeared based on the mistaken assumption that Congress didn’t intend the FSA to govern offenders’ sentences imposed for pre-enactment conduct. But there was significant evidence to the contrary: Congress had passed the FSA “in response to the Sentencing Commission’s repeated recommendations that the crack-to-cocaine powder ratio be reduced” and former “[c]ounsel would not have had any reason, where the question remained open, to conclude courts would inevitably embrace an interpretation of the FSA that preserved the mandatory minimum when courts had long noted the unfairness of the 100-to-1 disparity.” (id. at 18-19) (citations omitted). Stated more bluntly, there was no strategic reason not to seek a continuance, for “‘it cost the defense nothing and the possible benefit . . . was undoubtedly significant.’” (id. at 21)( citation omitted)

Having found Strickland’s first element met, the majority, the majority had no difficulty concluding that Abney had satisfied the “second, but-for prejudice prong,” for a motion for continuance would have been granted by a “reasonable, conscientious and impartial district court.” (slip op. at 23-24) (citing Strickland and United States v. Gantt, 140 F.3d 249, 256 (D.C. Cir. 1998( (internal citations omitted)). Crucially, Abney proved not only that the FSA’s “text made it reasonably likely, even if not a certainty, that courts would interpret the FSA to apply to offenders like Abney,” the trial court previously had granted the government two continuances of sentencing. (slip op. at 24-25.).

Abney, thus, is a rara avis. His appellate lawyers succeeded in causing a harsh sentence to be reversed for defense counsel’s committing “legal error” in not understanding the law of sentencing and then essentially failing to advocate for his client at sentencing. These shortfalls breached the “‘overarching duty to advocate the defendant’s cause.’” (slip op. at 16-17, 22) (quoting Strickland, 466 U.S. at 688).

Dissenting, Judge Brown claimed the majority had collapsed the Strickland standard into a “one-part test of its own making”), (slip op. at 1-4) (Brown, J., dissenting) – a description that the majority expressly rejected. (slip op. at 3-4) (Rogers, J.). Additionally the spirited dissent argued that the majority had placed too high a burden on defense counsel, (slip op. at 5-8) (Brown, J., dissenting) –a contention that the majority also disputed. (slip op. at 21) (Rogers, J.). Of prime concern to the dissent was the belief that the contemporaneous legal landscape was muddled and counsel couldn’t have believed that retroactivity would be anything other than “the all-or-nothing concept it had always been – retroactive or prospective, but nothing in between.” (slip op. at 8) (Brown, J., dissenting). In your blogger’s personal view, the dissent has it wrong.  In this case’s circumstances, there was no good reason not to seek a continuance of the sentencing and every reason not to expose the client to a far more severe punishment under the soon-to-be-jettisoned mandatory minimum.

Three Wilmer Hale pro bono lawyers (Rachel Murphy argued the case and Brent Gurney and Emily Stark were on the briefs) achieved a commendable and well-reasoned result for their client. The Circuit’s decision discusses important points governing the standard of review, sentencing law and retroactivity.

–Steve Leckar, of counsel to Kalbian Hagerty LLP, enjoys following and occasionally arguing in the D.C. Circuit.

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United States v. Soto-Rivera

In this case, the First Circuit reviewed a sentencing court’s determination that Mr. Soto-Rivera qualified as a Career Offender. A defendant who is over 18 at the time he commits a “felony that is either a crime of violence or a controlled substance offense,” and who “has at least two prior felony convictions of either a crime of violence or a controlled substance offense,” is a Career Offender. U.S.S.G. § 4B1.1(a).

Mr. Soto-Rivera pled guilty to being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).  At sentencing, the court announced Mr. Soto-Rivera had two previous convictions for “controlled substance offenses.”  The judge then stated, in “conclusory fashion,” that Mr. Soto-Rivera’s latest conviction for felon in possession of a firearm is “considered a crime of violence.”  As a result, the sentencing court found Mr. Soto-Rivera was a Career Offender.  Incredibly, Mr. Soto-Rivera failed to object to the Career Offender classification.

Even more incredible, however, was that on appeal, the Government never recognized Mr. Soto-Rivera’s failure to object during sentencing.  The First Circuit noted that normally, Mr. Soto-Rivera’s failure to timely object at sentencing to the Career Offender designation would subject him to plain error review on appeal.  But the Government never argued for plain error review.  In fact, the Government stated at oral argument the issue should be reviewed de novo.  Thus, the First Circuit held: “in accordance with our precedent and the government’s own request, we will review the issue as if it had been properly preserved.”

Mike Brownlee is an appellate attorney in Orlando, Florida with the firm of Fisher Rushmer, P.A.  His practice is dedicated to federal and state civil and criminal appeals.  

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Here is a recap of some recent victories from the Sixth Circuit. Good to see vigilant defense counsel using foresight to prevent undue restrictions resulting from sentencing conditions.

United States v. Arnold. Sixth Circuit: A jury convicted Appellant of being a felon in possession of a firearm. At sentencing, the district court departed upward, at least in part, because of its concern that a longer term of imprisonment was needed to ensure that Appellant received appropriate mental health treatment. Specifically, the district court found that Appellant’s “anger” warranted an upward departure to promote public safety, but also that Appellant so needed a “psychiatric intervention” that the Court felt compelled “to grant the government’s motion to go outside and above the sentencing guidelines” to ensure the Appellant would receive that treatment. The Sixth Circuit found that the district court abused its discretion.

United States v. Kelly. Sixth Circuit: Appellant violated his terms of supervised release by failing to register as a sex offender. As part of its Judgment, the district court imposed that district’s rote conditions of supervised release for sex offenders. But the Appellant’s last sex offense predated the revocation by 26 years. Moreover, the record demonstrated that Appellant had a low likelihood of recidivism (for sex offenses), had no mental disorder, had benefitted from previous therapy, and the age had lessened the risk of re-offending. Under such circumstances, the district court abused its discretion and the sentence was substantively unreasonable. The case further highlights the need for Counsel to be vigilant when Courts seek to impose “standard” conditions of supervised release.

United States v. Wilson. Sixth Circuit: A jury convicted Appellants of conspiracy to defraud the United States and providing false information to the Social Security Administration. Appellants sought to demonstrate their good faith reliance on the advice of their accountant, but the district court precluded that effort. Specifically, the district court found that Appellants had not sufficiently made an offer of proof sufficient for the defense to be presented to the jury. The Sixth Circuit, finding that the district court abused its discretion, found that an offer of proof unnecessary. Rather, Appellants needed only to inform the court of the substance of the evidence to be presented. As a second finding of error, the Sixth Court found that the district court failed to articulate its reasoning for a leadership enhancement, which required reversal.

Robert Dietrick represents criminal defendants in the federal Courts of Appeals.

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United States v. Pough, No. 15-1762 (3d Cir. Jan. 22, 2016) (unpublished)

This non-precedential Third Circuit decision reminds district courts that confessing that you were coerced into confessing something is not the same as confessing that you did what you confessed to doing.  Got that?  The facts may help.  Pough (who was already on federal supervised release) confessed to being a getaway driver in a murder-for-hire.  In a state court prosecution he moved to suppress the confession.  At the suppression hearing he testified about the contents of the confession; loosely, “yes, I confessed to being the getaway driver.”  The state court suppressed the confession as coerced and the state withdrew the charges.

Not one to let these things go, however, the federal government tried to revoke Pough’s supervised release.  The district court interpreted Pough’s testimony at the suppression hearing as an admission that he committed the conduct to which he had confessed, and found a violation.  The court took pains to note that it had “rel[ied] solely on” Pough’s testimony in support of suppression.  It probably did so in the hope of avoiding the thorny question of whether a coerced confession is admissible in a federal revocation proceeding – but in the process it earned a reversal.  Reviewing the transcript, the circuit held the district court’s interpretation clearly erroneous, noting the difference between admitting to having confessed to conduct and actually confessing to the conduct.

The remand may require the district court to confront the thorny question that it tried to avoid.

By:  Lisa A. Mathewson,

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Prosecutors often accuse defense attorneys, and our clients, of using unduly narrow interpretations of the law to justify conduct that hasn’t expressly been ruled illegal.  Who among us hasn’t heard the government invoke some variation of “the absence of an explicit prohibition doesn’t bar a prosecution”?  In other words, says the government, “it’s not okay just because no one told you it isn’t.”

The Third Circuit turned that argument around on the government recently, in United States v. Moreno, ___ F.3d ___, 2016 WL 53796 (3d Cir. Jan. 5, 2016).  A prosecutor in the Western District of Pennsylvania had a bright new idea:  use the defendant’s sentencing allocution as an opportunity to cross-examine him about the offense conduct – an opportunity that the prosecutor hadn’t gotten at trial, when the defendant chose not to testify.  The innovative prosecutor succeeded in eliciting incriminating admissions, upon which the sentencing judge promptly and expressly relied when imposing sentence.  Although the defendant had appropriately cabined his allocution to mitigation and remorse, defense counsel did not object to the cross-examination or the judge’s reliance upon it.

On appeal, the government sought refuge in the fact that neither a rule nor binding precedent explicitly says “no, prosecutors, you cannot cross-examine a defendant at allocution.”  The government relied on this “but no one said I couldn’t” analysis to argue both that no error had occurred, and that any error was not “plain” (as required for reversal, with no objection below). Continue reading →

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Bonifacio Toribio-Almonte was indicted on two counts: (1) conspiracy to import five kilos or more of cocaine and one or more kilos of heroin into the U.S., and (2) conspiracy to possess and distribute five kilos or more of cocaine and one or more kilos of heroin on board a vessel within U.S. customs waters.  On the morning his trial was set to begin, he pled guilty without a plea agreement.

Mr. Toribio-Almonte’s guideline range was 188-235 months in prison.  He requested a sentence below the guidelines, or at the very least, his minimum mandatory sentence, which was 120 months.  The Government requested a 235 month sentence.  To support its request for a sentence at the high end of the guideline range, the Government claimed Mr. Toribio-Almonte was a leader or organizer of the conspiracy.  The problem for the Government was that it had no evidence whatsoever to back up its claim.

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The Armed Career Criminal Act (ACCA) is one of the harshest federal gun laws. If a defendant has three or more violent felonies or serious drug crimes, the penalty for being a felon-in-possesion of a firearm goes from a maximum of ten years’ incarceration to a mandatory minimum of fifteen years and a maximum of life. Camden Barlow entered a guilty plea to being a felon-in-possesion knowing that the government believed that he was an Armed Career Criminal. After he pled, however, he sought at sentencing to first undo his plea by arguing that none of his prior convictions qualified him as a felon under 18 U.S.C. § 922(g). He alternatively argued that even if he were a felon-in-possesion, he did not have the requisite three prior convictions for violent felonies required by the ACCA. He lost in the district court on both arguments.

The two issues in the case were: (1) What is a felony? and (2) What is a violent felony?. As with many terms of art in federal sentencing, what seems like an easy question becomes complex when its answer requires delving into state sentencing procedures. For ease of application, federal sentencing law says that any crime, whether a state classifies it as a felony or a misdemeanor, is a federal felony if its maximum penalty is over one year in jail. Seems simple enough, but in practice it isn’t.

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When police officers can lie and about what they can lie is a recurring issue in criminal appeals. Courts have found that not telling the truth can be a useful tool in investigations, but is checked by the Constitution. For example, a detective can, while interrogating a suspect, lie about the evidence the police already have in their possession. Police can lie about the real reason for stopping a driver — they say it was for speeding, but in fact was because they believed the driver was a drug dealer. But, police cannot tell you they have a search warrant when, in fact, they do not have one.
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In the 2002 science fiction thriller Minority Report, Tom Cruise manipulated a futuristic computer interface by donning special gloves and waving his hands in the air to manipulate holographic screens of images and data. Using this sytem, he was able to see crimes before they were committed, so that the would-be perpetrators could be pre-emptively arrested and punished. This worked in the movie, because the computer interface was connected to a coven of clairvoyant psychics. And because it was just a movie. And because, well, he’s Tom Cruise. But do not try this if you are a federal district judge ruling on a Rule 29 motion in a drug-distribution conspiracy case, because you will only be waving your hands in the air. And that, luckily for Mr. Samuel Navarette-Aguilar, is not good enough.

Mr. Navarette was indicted on a number of drug charges, the aggregate effect of which was to subject him to a mandatory minimum 20-year sentence if, and only if, the jury found beyond a reasonable doubt that he conspired to distribute a kilogram or more of heroin. The pertinent evidence consisted of the testimony of Mr. Equihua-Ramirez, who obtained heroin from Mr. Navarette, and Mr. Burns, who bought heroin from Mr. Equihua-Ramirez. Faced with Mr. Navarette’s Rule 29 challenge to the sufficiency of the evidence to support the one-kilogram finding, the district judge engaged in a sort of evidentiary reverse-Tetris, trying to stack these witnesses’ vague and cryptic quantity and frequency references on top of one another such that they would reach the one-kilogram mark. It could not be done.

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Most cases before the Court of Appeals are there because the District Court accepted the arguments of one party or the other. The party that did not prevail noted an appeal and the two sides continue to advocate for their respective positions before the appeals court. There is, however, a narrow subsection of cases where the parties agreed as to what the correct ruling in a case should be, but the District Court nonetheless rules otherwise. We are then faced with the odd situation where the defense and the government are jointly asking the appellate court to reverse the judgment of the District Court. In these cases, the parties usually get what they wanted in the first place, but not before the Court of Appeals recruits an attorney to defend the District Court’s ruling.

This sequence of events played out in Lance Williams’s case. In 2008, Williams pleaded guilty to distributing crack and faced an enhanced mandatory minimum sentence of 240 months’ incarceration. Absent the government’s motion for that enhanced sentence, his advisory sentencing guidelines range would have been 130 to 162 months’ incarceration. Shortly before his sentencing, the government moved for a downward departure based on his substantial assistance to law enforcement. He therefore received a 180-month sentence on the government’s recommendation.

Three years later, Williams filed a pro se motion for sentence reduction under 18 U.S.C. § 3582(c)(2). In the motion, he argued that amendments to the sentencing guidelines, which were expressly retroactive, made him eligible for a sentence reduction. As the case progressed, the probation office, Williams’s newly appointed attorney, and the government all argued that Williams should receive a sentence reduction.

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