Articles Posted in Guilty Pleas

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Sometimes being a defense lawyer in federal court is a matter of playing for dropped balls. In some cases, if everything goes the way it looks like it should for the government, there’s not much chance of a good result. But, mistakes are often made. If the right mistakes happen, things can look different quickly.

877665_sport_balls_1.jpgThe appeal in the First Circuit’s recent opinion in United States v. Ortiz shows the importance of playing for a dropped ball.

A Night in May

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One of the hardest things about representing a person charged with a crime in federal court is that the law is often changing. A decision that makes sense based on the law at the time, may not make sense later, if the law moves.

Fortunately, sometimes when the law changes, it changes for the better. And, sometimes when the law changes for the better, a person charged with a crime can benefit from it.

The Sixth Circuit provides a nice example of this in United States v. Cornell Smith.

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Tomas Leiskunas, a man who “at 26 years old . . . had a minor criminal history and at least two aliases,” was charged with being a straw purchaser in a mortgage fraud scheme in the federal district court in Chicago.

United States v. Leiskunas, would take out fake mortgages in Mr. Leiskunas’s name* on houses that he was never going to live in. He would attend real estate closings and say that he was going to live in the houses.

That’s against the law.

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The vast majority of federal criminal cases are resolved through plea agreements.

There are a lot of advantages to pleading guilty, among them: the sentencing guidelines level will be lower under section 3E1.1 of the sentencing guidelines; a person can sometimes avoid a charge with a mandatory minimum; and the government will often offer some concessions in what it seeks at sentencing.

It makes sense that a person facing a federal crime would want to put herself in a better position for sentencing.

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Recently, the Fourth Circuit held that the government cannot deny someone who pleads guilty the third level for acceptance of responsibility under 3E1.1. Here’s my earlier post on the Fourth Circuit opinion (which describes the issue in much more detail).

Today, the Second Circuit joined the Fourth Circuit’s celebration of giving full sentence-reduction credit to people who plead guilty.

In United States v. Lee, the defendant, Mr. Lee entered a guilty plea and did it soon enough that they knew they wouldn’t have to prepare for trial. The government refused to move for a third level reduction in Mr. Lee’s sentencing guidelines under 3E1.1, though, because Mr. Lee had the temerity to disagree with the government about what happened in the crime.

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How should we think about seeing a sentenced reversed? Is it a statement about the quality of the district court judge? To be sure, a United States district judge will not pop the champagne on hearing she’s been reversed. But, ultimately, should we think that the appeals court is commenting on the ability of the district court judge when it sends the district court’s work back for a do-over?

I tend to think we shouldn’t. It appeals the Sixth Circuit disagrees with me in United States v. Priester. (For Sentencing Law & Policy coverage, go here.)

Mr. Priester entered a guilty plea to a number of drug charges, including crack distribution. His lawyer argued that the judge should reject the guidelines because they reflect a policy decision that crack cocaine is worse than powder cocaine. The district court judge, on the Sixth Circuit’s reading of the transcript, said he didn’t think he had the power to reject sentencing guidelines.

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You’ve got to feel for federal district court judges.  No one wants someone else looking over their shoulder.  Even though winning a federal criminal appeal is hard to do, district court judges still do get reversed more often than they’d like. 

Yet, when it comes to pleading guilty, only the government can ask the defendant to give up his right to plead guilty — the judge doesn’t have a role in plea negotiations. 

One district court judge in the Ninth Circuit had a novel solution — he’d just negotiate, “man to man”, his own appeal waiver with a defendant.  Which gives rise to a remarkable Ninth Circuit opinion in United States v. Gonzalez-Melchor.

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In a federal criminal appeal this week, the Fourth Circuit bucked a line of cases in other circuits and held that the government can’t try to give a longer sentence to criminal defendants just because they won’t give up their right to appeal. 

A bit of background is helpful.

In the federal system, if a person enters a plea of guilty and accepts responsibility for their conduct, their federal sentencing guidelines level is reduced by two-levels automatically.  If the government makes a motion for additional acceptance, the guidelines level will drop an additional, third level.  The government is supposed to make that motion based on whether the person said he was going to plead early in the process, thereby saving the government time in preparing for trial (because, of course, using the government’s resources efficiently is a factor in 18 U.S.C. section 3553(a)).