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Ineffective assistance of counsel and standards of review – counsel’s failure to seek a continuance of sentencing found to violate the Strickland standard: United States v. Abney, _ F.3d _ (D.C. Circuit, No. 14-3074, February 5, 2016)

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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