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The Tenth Circuit Holds That A Federal Sentencing Expert Was Correct That His Own Federal Sentence Was Wrong

Howard Kieffer really liked federal sentencing practice.

He co-counseled in cases in federal district court and some federal circuit courts. He gave presentations on how people who are facing a sentencing hearing can prepare, and he helped people who were going to the Bureau of Prisons position things so that they could make an easier transition.

Mr. Kieffer even ran a website and a listserve for people who were interested in sentencing and the Bureau of Prisons – lots of lawyers contributed.

Sadly, though, as the 10th Circuit, in United States v. Kieffer, noted:

All the while, [Mr. Kieffer] had a secret. He is not and never has been an attorney. He never went to law school, never sat for a bar exam, and never received a license to practice law.

68920_law_education_series_5.jpgGail Shifman

In 2006, at a conference for the National Association of Criminal Defense Lawyers, Mr. Kieffer met Gail Shifman – a criminal defense lawyer in San Francisco. One can imagine that they discussed lawyer stuff – cases and clients and how to work in a broken system.

At some point, though, Ms. Shifman learned that Mr. Kieffer was not a lawyer. She emailed him.

It was a pointed email. Ms. Shifman wrote:

if it is correct that you are not a licensed attorney, then you’ve directly lied to me on more than one occasion.

Mr. Kieffer’s response may not have been as direct. Among other things he wrote:

In short, I am “licensed”–if that is the operative term (and I am not sure that it is) in no state, but I have been admitted (for various purposes) or specially appeared in accord with local rules) in certain (federal) jurisdictions.

I went to Antioch Law School–and graduated.

Somehow, Ms. Shifman was not satisfied with this response. She contacted the FBI.

As the 10th Circuit noted, “this was not the first time the FBI received a complaint about [Mr. Kieffer’s] legal escapades.”

Colorado

As it happened, Mr. Kieffer came to enter his appearance on behalf of a person charged with a crime in the United States District Court in Colorado. He appeared on the person’s behalf at a competency hearing. The person was convicted.

Mr. Kieffer was paid $65,750 for this representation.

He was charged with wire fraud. Mr. Kieffer was convicted in a federal district court in Colorado.

Interestingly, this was also not Mr. Kieffer’s first federal conviction.

North Dakota

Flash back to before Mr. Kieffer was convicted in Colorado.

Shortly after his Colorado client’s trial, the District of North Dakota had issued a show cause order challenging some of the statements he made in an application for admission to that court.

Mr. Kieffer hired counsel to represent him with the North Dakota order. He admitted that he wasn’t a member of any state bar, and that he didn’t graduate from Antioch College of Law.

He was convicted in federal court in North Dakota of making a materially false application to the court and sentenced to 51 months.

Back to Colorado

He was then suspended from practicing law in the District of Colorado (which is a little funny when you think about it, since he wasn’t a lawyer).

Then came his Colorado conviction and, later, sentencing.

Was North Dakota Any Different?

At sentencing, the court decided that this conduct was separate from his North Dakota conduct. This did not work into Mr. Kieffer’s favor. Indeed, it looks like a pretty good approach if the court wanted to make things worse for Mr. Kieffer.

Treating the North Dakota sentence as separate did two things – each of which was challenged on appeal.

First, it meant that his North Dakota conviction counted as a prior conviction for criminal history purposes. Mr. Kieffer pointed out that the government’s position was that he had engaged in a continuing scheme – his prior conviction was a part of that scheme.

The government agreed that this was error. The 10th Circuit did too.

More fundamentally, though, was whether Mr. Kieffer’s sentence on this offense would run concurrent or consecutive to his North Dakota conviction.

To quote the 10th Circuit:

[Mr. Kieffer] rightly claims that in addition to its erroneous criminal history calculation, the district court erred in manipulating the calculation of his offense level so it could ignore U.S.S.G. § 5G1.3(b) and ostensibly impose a within guideline range sentence on him while running that sentence consecutive to the sentence he received in the District of North Dakota.

Section 5G1.3(b)’s “central aim” is to “ensure no defendant is punished twice for the same crime.” Here, the district court counted Mr. Kieffer’s related prior conviction as unrelated just to evade § 5G1.3(b). The 10th Circuit said that was incorrect.

Because the district court misapplied section 5G1.3, and miscalculated Mr. Kieffer’s criminal history category by, in both cases, treating his North Dakota offense as unrelated, the case was remanded for resentencing.

It’s good to see that Mr. Kieffer was vindicated in two ways – he won his appeal, and he showed that he is an expert at federal sentencing law after all.