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6th Circuit Fleshes Out Ineffective Assistance on Plea Deals – Update for October 15, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

6th CIRCUIT ISSUES FASCINATING INEFFECTIVE-ASSISTANCE DECISION ABOUT BAD ADVICE ON PLEA DEALS

Ttakethemoney191015ell me if this sounds familiar: a defendant is charged with a crime. His or her court-appointed attorney discourages making any plea deal with the government, because counsel can win it for sure at trial. At trial, defense counsel completely misunderstands the law, and mangles the defense. Defendant is convicted, and gets hammered.

That’s what played out at the 6th Circuit last week. The Court granted habeas corpus to a Michigan inmate who was convicted of aiding and abetting a robbery-turned-murder. Billy Joe Byrd and his girlfriend Bobbie Sue decided to commit a robbery. Billy Joe got cold feet before the crime, but he gave Bobbie Sue his gun. Bobbie Sue shot a man while robbing his castle. Rather than heading down south with Bobbie Sue, Billy Joe turned himself in.

In Michigan, aiding and abetting a murder carries the same sentence as the murder itself, mandatory life. Billy Joe wanted to make a plea deal, but his court-appointed attorney convinced him that because he had walked away from the crime before it happened, he could not be convicted. He told Billy Joe it didn’t matter even if he gave Bobbie Sue the gun knowing she was going to rob the Gasso, because he did not intend that she do so.

lawyermistake170227Alas, the defense attorney was as wrong as he could be. Michigan requires a defendant claiming abandonment as an affirmative defense to establish “by a preponderance of the evidence voluntary and complete abandonment of a criminal purpose.” In fact a prior Michigan Court of Appeals case, People v. Akins, held that, despite the defendant’s defense that he changed his mind about a robbery, his abandonment defense failed because, among other things, he “gave his gun to [the principal], knowing that it would be used to commit the robbery.”

Bobbie Sue had a better lawyer. She pled to second-degree murder and got 30 years. In fact, she testified against Billie Joe. That’s not in the song.

The 6th Circuit was incredulous that defense counsel met with Billy Joe for a grand total of 60 minutes between indictment and trial. Billy Joe said that during their meetings, the lawyer did not review the sentencing guidelines or explain aiding and abetting or other legal concepts underlying the case. The lawyer “baldly denied these allegations but also testified that he did not remember his conversations” with Billy Joe “precisely” or “particularly.”

In that court, prosecutors wait for defense counsel to request an offer before beginning negotiations. Then, the prosecutor will develop a proposal and consult with the interested parties. The judges in that court rarely reject plea agreements. Billy Joe “was denied the opportunity to accept a lesser charge and more lenient sentence because his trial counsel,” the 6th said, “never initiated plea negotiations with the prosecutor’s office.”

The District Court refused Billy Joe any post-conviction relief, holding that he could not prove he would have taken a plea offer. Besides, the government argued, the 6th Amendment only covers effective assistance when the government makes an offer. Here, Billy Joe never initiated plea negotiations.

billyjoe191015

The 6th Circuit said that did not matter, holding that “in the context of the right to effective assistance of counsel… the absence of a right to be offered a plea or to have it accepted… is beside the point’.” The Circuit said Billy Joe’s lawyer displayed “a shocking lack of comprehension regarding the pertinent law” in the case… A criminal defendant has a right to expect at least that his attorney will review the charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options available.”

The Government argued Billy Joe was not prejudiced, because he claimed he was innocent, and so would have gone to trial anyway. The 6th disagreed. Here, the defendant’s “interest in proceeding to trial was rooted in misinformation gleaned from his counsel’s faulty advice, making it an unreliable metric of reasonably probable outcomes.” Defense counsel’s advice to Billy Joe “was erroneous and omitted critical details” about the case. Thus, Billy Joe “lacked the requisite information to weigh the options in front of him, and whatever desire he exhibited before trial is not dispositive of what he would have done if he were properly educated about the charges against him.”

Byrd v. Skipper, 2019 U.S. App. LEXIS 30163 (6th Cir. Oct. 8, 2019)

– Thomas L. Root

Why Be Precise When a WAG will Do? – Update for October 11, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

THE COURT HAS HEARD THAT GOVERNMENT EXCUSE ON LOSS CALCULATIONS BEFORE

lollipopcost191011For the countless federal criminal defendants whose sentence is driven by a calculation of the amount of loss their offense caused, the excuse of “close enough for government excuse” has special meaning: all too often, the Government gins up some number – often enough, a WAG – and tells the Court that the precise loss figure cannot be calculated, but here’s a “reasonable estimate.”

And of course, the Government reminds the court that “a district court may accept a ‘reasonable estimate’ of the loss based on the evidence presented.” And the court usually goes along with it.

The loss amount is crucial to the defendant, not only because the he or she is going to be ordered to pay that amount in restitution, but because the Guidelines offense level under USSG § 2B1.1(b)(1) –  and the suggested sentencing range – skyrockets with the amount of estimated loss.

That “reasonable estimate” standard has slid over the years to seemingly permit the government to give a “reasonable estimate” (usually heavy in favor of the government) in virtually any case. Steal candy from a baby? The Government will tell the court that all it can do is estimate that the Tootsie Pop was worth $200,000.

Last week, the 11th Circuit pushed back.

Roberta Sheffield was convicted of running an IRS tax scheme that netted unjustified $1,000 tax refunds to a lot of people. At sentencing, the government produced a spreadsheet showing a loss of $3.46 million. Roberta complained that the spreadsheet contained duplicate entries, but she had no list of what entries were wrong. The government admitted there might be some errors, but argued that the burden was on the defendant to prove the spreadsheet wrong.

The 11th Circuit disagreed. It held that “once the government acknowledged that there was in fact some duplication, it could not carry its burden without correcting the spreadsheet.” The Circuit noted that recent studies show 90% of restitution is uncollectible, and that it was unlikely Roberta and her co-conspirators would ever satisfy the award.

broke191011At oral argument, Roberta asserted that the duplicate entries totaled $136,000. The Court noted that the error amounted “to a mere 4% of the government’s proposed total of $3,461,638. So one may wonder why it is that we are reversing a multi-million dollar restitution order when the result on remand is likely to be approximately the same and payment (at least full payment) is unlikely. The reason is a simple one. Ms. Sheffield has the right not to be sentenced on the basis of inaccurate or unreliable information, and is not required to pay restitution she is not responsible for.”

United States v. Sheffield, 2019 U.S. App. LEXIS 29502 (11th Cir. Oct. 1, 2019)

– Thomas L. Root

I Feel The Earth Move Under My Feet – Update for October 9, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SEISMIC DEVELOPMENTS AT TAFT

The Bureau of Prisons announced last week that it is closing Taft Correctional Institution, a government-owned prison run by a private contractor, on Jan. 31, because foundation settlement problems in buildings used for education and recreation would cost $100 million to repair, money the BOP says it does not have.

quake191010Taft, which has a low-security facility housing mostly inmates with immigration detainers and a satellite camp, is within 10 miles of the San Andreas fault. Current BOP population statistics show 1,653 at Taft.

By the end of the week, House Minority Leader Kevin McCarthy (R-California), had asked the BOP to suspend moving any inmates from Taft to other facilities, complaining that the “Bureau has so far refused to share detailed information regarding this decision and supporting materials, other than limited information included in the original deactivation notification.” In a letter to BOP Director Kathleen Sawyer Hawk and Attorney General William Barr, McCarthy called for “an immediate suspension of any activities related to the deactivation of the Taft Correctional Institution.”

Unconfirmed reports indicated that Taft administration told inmates last week that in response to McCarthy’s request, no inmates would be transferred for now. However, that embargo did not last long. Sources report that the first wave of staff layoffs, effective after Thanksgiving, were issued Tuesday. Inmates are already being transferred to other institutions, and plans reportedly are to transfer all of the low-security inmates by the end of November.

Taft, California, Midway Driller, Taft Correctional Institution to close Jan. 31 (Oct. 1)

Taft, California, Midway Driller, Congressman says BOP has “refused to provide full accounting” for closing federal prison (Oct. 7)

Bakersfield, California, KBAK-TV, Congressman McCarthy calls on DOJ and BOP to suspend Taft’s prison closure (Oct. 4)

– Thomas L. Root

Dept. of Low Expectations – Update for October 8, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ONE BILL GETS REPORTED FROM ONE COMMITTEE, AND EVERYONE THINKS HE’S GOING HOME

release191008A few readers complained last week that I had not reported the House Judiciary Committee’s vote that sent H.R. 4018 to the House floor. H.R. 4018 is a bill that would modify the Elderly Offender Home Detention Program (34 USC § 60541(g)(5)) to let those over-60 year old prisoners qualify for home detention after doing two-thirds of their net sentence rather than their gross sentence.

Currently, to qualify for the First Step Act’s expanded EOHD program, you must be 60 years old and have served two-thirds of your whole sentence. In other words, if you were sentenced to 100 months, you have to serve 67 months before you go home on home detention, and then you stay in detention until you reach 85 months, when you are released.

H.R. 4018, a single-sponsor bill, would qualify a 60-year old prisoner after he or she did two thirds of the net sentence. If you were sentenced to 100 months, you get out after 85 months with good time. H.R. 4018 would put you in the EOHD with two thirds of 85 months. Thus, you would go home after 57 months, and stay on home detention until 85 months.

longodds191008The House Judiciary Committee reported the bill favorably on Sept. 10 by a 28-8 vote. Nevertheless, Skopos Labs – which tracks federal legislation – gives the bill a 3% chance of becoming law. The legislation, with only 10 House co-sponsors, had little chance of being brought up for a Senate vote even before the impeachment talk ramped up. Recall how the First Step Act, with the House passing a very pro-prisoner version, barely made it to the Senate floor. That bill, with over 40 Senate co-sponsors and President Trump lobbying for passage, finally passed as a well watered-down measure in the closing hours of the Senate.

I did not mention H.R. 4018 for the same reason I did not mention the proposed Prohibiting Punishment of Acquitted Conduct Act of 2019, introduced Sept. 26 by Senators Chuck Grassley (R-Iowa) and Dick Durbin (D-Illinois). The bill would prohibit federal courts from considering acquitted conduct at sentencing, defining ‘acquitted conduct’ to include “acts for which a person was criminally charged and adjudicated not guilty after trial in a Federal, State, Tribal, or Juvenile court, or acts underlying a criminal charge or juvenile information dismissed upon a motion for acquittal.”

Grassley, who is Senate president pro tempore, said, “If any American is acquitted of charges by a jury of their peers, then some sentencing judge shouldn’t be able to find them guilty anyway and add to their punishment.” Currently, the Guidelines are written to run up the sentence with acquitted conduct, and judges do it all the time.

mcconnell180219This bill, S.2566, already has five co-sponsors, two Democrats and three Republicans. Grassley has a lot of horsepower in the Senate leadership. Yet, like H.R. 4018, it has no more than a ghost of a chance of passage. Senate Majority Leader Mitch McConnell (R-Kentucky), controls what bills reach the Senate floor for a vote. He has been an opponent of any prison reform, and only brought First Step to a vote because of White House pressure. Now, with President Trump soured on criminal justice legislation and preoccupied with re-election and impeachment, there won’t be any White House support for bringing any criminal justice measure to a Senate vote.

Stories like this don’t help: Last Friday, the Providence, Rhode Island, Journal reported that Joel Francisco, released from a life sentence for crack because of the First Step Act, is wanted for stabbing a man to death in a hookah bar. Remember Wendell Callahan? The Sen. Tom Cottons (R-Arkansas) of the world are always gleeful to have a poster child against sentencing reform like this fall into their laps.

H.R.4018 – To provide that the amount of time that an elderly offender must serve before being eligible for placement in home detention is to be reduced by the amount of good time credits earned by the prisoner (reported favorably by House Judiciary Committee, Sept. 10)

S. 2566: A bill to amend section 3661 of title 18, United States Code, to prohibit the consideration of acquitted conduct at sentencing (Introduced Sept. 26)

Providence, Rhode Island, Journal, He was released early from prison in February. Now he’s wanted for a murder on Federal Hill (Oct. 4)

– Thomas L. Root

Courts Start to Limit Rehaif Relief for 922(g) Defendants – Update for October 7, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

COURTS START FLESHING OUT REHAIF

gunknot181009Two courts last week did their best to limit the damage caused to the government By (and the benefit accruing to defendants from)  the Supreme Court’s June 21 decision in Rehaif v. United States. Rehaif held that in an 18 USC § 922(g) prosecution, the defendant had to know he or she was a member of a class prohibited from possessing a gun – such as an alien in the US unlawfully or, more commonly, someone convicted of a felony), and know that he or she was in possession of a firearm.

In both cases, the defendants raised Rehaif as a supplement to an already-briefed appeal, because Rehaif was decided after briefs in the cases had bee filed. And both courts of appeal ruled that whether Rehaif applied was subject to “plain error” analysis, because the issues had not been raised in the district courts.

Under Federal Rule of Criminal Procedure 52(b), an issue not raised below can be brought up on appeal only if (1) there was an error, (2) that was obvious, (3) affected the defendant’s substantial rights, and (4) “seriously affected the fairness, integrity, or public reputation of judicial proceedings.”

In the 8th Circuit case, before trial, the defendant called his girlfriend from jail, and they agreed she would claim ownership of the gun. The Circuit said that the call, as well as the fact he had previously served a 78-month federal drug sentence, showed he knew that he had been convicted of a crime punishable by a sentence of more than one year.

errorA160425While the trial court erred in not instructing the jury that the defendant had to know he was a felon, the 8th said, the defendant could not show a “reasonable probability that, but for the error, the outcome of the proceeding would have been different.” For that reason, the Court said, “any error in not instructing the jury to make such a finding did not affect the defendant’s substantial rights or the fairness, integrity, or public reputation of the trial.”

In a second decision issued last week, the 1st Circuit ruled that under the “plain error” standard, a defendant who had pled guilty to a felon-in-possession charge could not “show a reasonable probability that, but for the purported error, he would not have pled guilty.” The defendant conceded he had previously pled guilty to a state crime punishable by more than a year in prison, and he did not dispute that state law required a judge to make sure that a defendant knows the maximum possible sentence when entering a guilty plea. Under the circumstances, the 1st said, the defendant could not show that he would have gone to trial if he had been properly instructed.

Both cases are a little puzzling. Knowing you were convicted of a crime carrying more than a year in prison is only the start of the Rehaif analysis. The defendant must know he or she is in a prohibited class. In the definitions that govern § 922(g), set out in 18 USC § 921(a)(20), there are several significant exceptions to what may otherwise seem a straightforward question crime punishable by a sentence of over a year. For example, if the sentence of more than a year pertained “to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices,” it is not considered to be an offense disqualifying a defendant from gun possession. If the defendant has had his or her civil rights restored by the state, he or she is not disqualified. These definitions are not affirmative defenses, but rather integral to the meaning of the “crime punishable by imprisonment for a term exceeding one year” language of § 922(g)(1).  

noteasy191007The Rehaif analysis seems to me to be a little more complex than what the 1st and 8th applied in these early decisions, a rather binary approach in which you either were or were not convicted of a crime punishable by imprisonment for a term exceeding one year. I suspect that as the lower-court jurisprudence fleshes out the meaning of Rehaif, the complexities will be developed.

A final note: A number of petitions for writ of certiorari pending several months, the Solicitor General has been advising the Supreme Court that due to Rehaif’s holding that “the mens rea of knowledge for that crime applies both to the defendant’s conduct and to defendant’s status,” the Court should grant pending petitions for a writ of certiorari, vacate the decisions below, and remand the cases for further consideration in light of Rehaif.

United States v. Hollingshed, 2019 U.S. App. LEXIS 29707 (8th Cir. Oct. 3, 2019)

United States v. Burghardt, 2019 U.S. App. LEXIS 29731 (1st Cir. Oct. 3, 2019)

Memorandum for Government, Stacy v. United States, Case No. 19-5383 (filed Aug. 30, 2019)

– Thomas L. Root

It Wasn’t a Lie, Just a “Mishandled” Communication – Update for October 4, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

MDC BROOKLYN’S PROBLEMS EXISTED LONG BEFORE LAST JANUARY

Last January’s power outage at MDC Brooklyn did not cause the heating problem that left inmates freezing in their cells, according to a report issued last week by the Dept. of Justice Inspector General. Instead, heat issues at the MDC had been a continuing problem well before the January 2019 fire that caused a partial power outage.

freeze191004Prison officials had known that the heating problem was a longstanding issue that had never been fixed. The heat problems were due to a lack of equipment to monitor temperatures in the jail, which reached as low as 59 degrees a week before the power outage and often went above 80 degrees even in the winter months, the report found.

The investigation also found that prison officials mishandled the power outage.

As half a dozen judges and advocates suspected in the days after the outage, inmates were left trapped inside without access to their lawyers or information about why they couldn’t visit with family members, the report found. “This is particularly problematic in view of the facility’s population of pre-trial detainees, some of whom may have required daily access to counsel to prepare for trial,” Inspector General Michael Horowitz said. Prison officials also didn’t communicate with the legal counsel, relatives and the public and mismanaged two medical issues that happened during the outage, the report said.

liar151213The IG’s report was immediately criticized by some commentators. The MDC warden at the time, Herman Quay, was accused of lying about conditions during the outage to the public, to the media and even to the U.S. Attorney. He has since been promoted and a new warden was installed at MDC.

The Intercept complained that the report “relies heavily on the accounts of the very officials who presided over the crisis, draws minimally from the experiences of the people who endured it, and seems more preoccupied with the episode as a public relations blunder than as a humanitarian disaster. The report does not address the chronic deception in jail officials’ statements during and after the crisis.”

“This report confirms that there have been longstanding management problems at MDC that must be rectified,” said Rep. Nydia Velázquez (D-Brooklyn).

In a response to the investigation, Politico reported, the BOP said it will complete an upgrade to its heating, cooling, and ventilation equipment. It also agreed to begin giving inmates sweat suits and thermal underwear as part of their standard-issue clothing package until all the heating problems are resolved.

DOJ Office of Inspector General, Review and Inspection of Metropolitan Detention Center Brooklyn Facilities Issues and Related Impacts on Inmates (Sept. 26)

Politico, Investigation finds widespread infrastructure, leadership failures at Brooklyn federal jail (Sept. 26)

The Intercept, Inspector General Report Treated Freezing Federal Jail As A PR Blunder Rather Than A Humanitarian Disaster (Sept. 28)

– Thomas L. Root

Trump’s Not Feeling the Love from First Step Act – Update for October 3, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

TRUMP SOUR ON CRIMINAL JUSTICE REFORM

When President Trump started planning his reelection last spring, White House senior adviser Jared Kushner told his father-in-law he should highlight last year’s passage of the First Step Act. Kushner reiterated the positive selling points of that bill, but Trump wasn’t interested. He complained and told Kushner he didn’t think his core voters would care much about a bipartisan deal.

angrytrump191003Trump “is telling people he’s mad” at how criminal justice reform has panned out, according to a person close to the president. “He’s saying that he’s furious at Jared because Jared is telling him he’s going to get all these votes of all these felons.”

Politico reported that unidentified White House officials congressional aides and friends of the president, say that Trump no longer sees criminal justice reform as a résumé booster heading into 2020.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy blog last Tuesday that Trump’s change of heart “portends some dark clouds for federal criminal justice reform efforts in the months and perhaps years ahead.” But one White House official said, “It would be difficult to say it’s a change of heart. I don’t think his heart was ever really in it.”

Politico, Trump snubs Jared Kushner’s signature accomplishment (Sept. 24)

Sentencing Law and Policy, Prez Trump has reportedly soured on politics of criminal justice reform after FIRST STEP Act achievement (Sept 24)

– Thomas L. Root

Dog Bites Man: Vendor Sells Bad Food to BOP – Update for October 2, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

WEDNESDAY IN THE CHOW HALL WILL NEVER BE THE SAME

For those of you unfortunate enough not to have experienced it firsthand, we offer an explanation: Wednesdays are always hamburger days in the Bureau of Prisons chow halls nationwide. While it’s true that the Burger King would be dethroned for selling a burger like the one that’s standard fare in the BOP, still, the Wednesday midday meal is a brighter spot than the meals for the other six days of the week.

Until now.

badburger191002Two meatpacking plant executives pled guilty last Tuesday to their role in a scheme to sell 800,000 lbs. of bad meat to the BOP, according to the US Attorney for the Northern District of Texas.

According to the plea agreement, the two men admitted to selling uninspected, misbranded, or adulterated meat – including whole cow hearts labeled as “ground beef” – to 32 prisons in 18 states.

West Texas Provisions, Inc. president Jeffery N. Smith and operations manager Derrick Martinez pled guilty to conspiracy to defraud the United States. The BOP paid about $1 million for the bad meat between October 2016 and August 2017.

West Texas Provisions marketed uninspected meat as “USDA inspected.” The company processed whole cow hearts (not permitted in ground beef products) at nights, when inspectors were not present, and labeled it “ground beef.” The defendants often kept the lights off while processing uninspected meat, hid uninspected meat in the freezer while inspectors were in the building, and distracted inspectors from looking at questionable product.

Bon appetit.

US Attorney’s Office for the Northern District of Texas, Meat Packing Plant Execs Plead Guilty to Selling $1 Million in Adulterated Ground Beef to Federal Bureau of Prisons (Sept. 25)

The Crime Report, Meat Executives Plead Guilty to Selling Bad Beef to 32 Prisons (Sept. 26)

– Thomas L. Root

It’s Gonna Be a Lo-o-o-ong Day – Update for October 1, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUMMER’S OVER, BACK TO WORK

The Supreme Court’s summer recess ends today with the annual “Long Conference,” where the Court will take up the backlog of 1,500+ petitions for certiorari that have piled up since June.

vacationSCOTUS180924So far, the three most consequential cases on the docket when the Court holds opening day next week are Shular v. United States, which asks whether the categorical approach should be used on prior drug convictions for the Armed Career Criminal Act; Banister v. Davis, which asks whether a Rule 59(e) motion in a § 2255 proceeding is subject to the second-or-successive rules of the Gonzalez v. Crosby and 28 USC §2244, and Carpenter v. Murphy (now named Sharp v. Murphy), asking which authority (the state or federal) has jurisdiction to prosecute major crimes allegedly committed in territory covering about half of the state of Oklahoma. It sounds dry, but it could invalidate thousands of Oklahoma convictions, and thus affect everything from criminal histories to ACCA and 28 USC § 851 enhancement cases.

SCOTUSBlog, Overview of the court’s criminal docket for OT 19 – sizeable and significant (Sept. 9)

– Thomas L. Root

You’re Not Exactly a Felon Yet – Update for September 30, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CONDITIONAL DISCHARGE NOT A CONVICTION

Tyrius Smith had a prior North Carolina case in which he had pled guilty, and then been “conditionally discharged.” But when he was caught with a gun, the Federal district judge called his prior a felony, and Ty was convicted of being a felon in possession of a gun in violation of 18 USC § 922(g).

manyguns190423Last week, the 4th Circuit reversed his conviction. “While there is no doubt that Ty possessed a firearm,” the 4th said, “we must decide whether he was a felon under federal law. Answering that question is surprisingly difficult. Federal law treats someone as a felon if “convicted” of a crime punishable by more than one year in prison. But what exactly counts as a ‘conviction’? In some cases the answer seems easy — for example, where a federal judge imposes a sentence after a jury has found the defendant guilty. In other cases it is hard; this is one of them.”

The North Carolina judge, after Ty’s guilty plea, imposed a “conditional discharge” as allowed by state law. This meant that without entering a judgment of guilt,” the court “deferred further proceedings and placed the person on probation… for the purpose of allowing the defendant to demonstrate the defendant’s good conduct.” If Ty fulfilled his probation conditions, the guilty plea would be withdrawn and the case dismissed.

Alas, Ty did not fulfill the conditions. Instead, he was caught with some guns, and his probation was violated by North Carolina. But before the conditional discharge could be withdrawn and he could be convicted in the state, the Feds charged him with the § 922(g).

The North Carolina felon-in-possession law defines “conviction” as “a final judgment in any case in which felony punishment, or imprisonment for a term exceeding one year… is authorized, without regard to the plea entered or to the sentence imposed.” Ty’s guilty pla and conditional discharge — as required by statute — was done without entering a judgment of guilt.” And without entry of a judgment, the 4th Circuit said, “and until the anticipated further proceedings” take place, the conditional discharge does not lead to a final judgment.”toughluck180419

So Ty dodged his Federal case. But he still has some ‘splainin’ to do to his North Carolina judge, and the smart money suggests that the state court is going to take the botched federal prosecution into account when it slams old Ty with time in state prison.

United States v. Smith, 2019 U.S. App. LEXIS 29218 (4th Cir. Sept. 27, 2019)

– Thomas L. Root