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Lousy Lawyering and Other Stories – Update for April 27, 2021

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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.

“DID I SAY FIVE YEARS? I MEANT FIVE DECADES…”

Four decisions of note last week:

stupidlawyr191202Oops, My Bad: Dave Mayhew was charged with white-collar fraud. The government offered him a plea deal that promised a maximum sentence of five years.

“C’mon, man,” his lawyer said. “That’s no deal. If we go to trial, five years is the worst we can do.” Dave, who paid big bucks for this professional advice, followed his attorney’s guidance and went to trial.

You can guess what happened. Dave lost, and he was sentenced to 27 years.

After appeals were over, Dave filed a habeas corpus motion under 28 USC § 2255, arguing that his lawyer was ineffective for giving him such bad advice. The district court denied the petition, pointing out that Dave was told at his re-arraignment that he could get up to 55 years on all of the charges and the court – no one else – would decide the sentence. So Dave knew what he was getting into, the judge claimed, and that cured any prejudice he would have suffered from his lawyer’s idiocy.

Last week, the 4th Circuit reversed. The re-arraignment came only after Dave had rejected the plea deal. The Circuit admitted that in the usual lousy-advice-on-sentence-exposure case, the law is clear that if the defendant pleads guilty after a Rule 11 change-of-plea hearing, the court’s warning that only it would determine the sentence and that the maximum the defendant faces, “taken together, may well have been enough to cure… counsel’s misadvice. But there is a fundamental problem,” the 4th held, “with applying that principle here, and it has to do with timing: The court’s admonitions in this case came only after Dave already had rejected the government’s plea offer, and there is no indication — in the record or from the government on appeal — that the offer remained open at that point.”

Bait and Switch: Rebecca Stampe made a deal on her drug case, agreeing to a Rule 11(c)(1)(C) plea locking her sentence at 168 months. An 11(c)(1)(C) plea sets a particular sentence or sentence range, with the court’s role limited to honoring the sentence deal or rejecting the guilty plea.

Deal170216Becky’s deal came with a government promise that if she testified against her co-defendant, she might get a substantial-cooperation sentence reduction under USSG § 5K1.1. But after she made the plea deal, the government dismissed the case against her co-defendant because of some unspecified misconduct by the informant (which presumedly made the informant’s testimony worthless).

Becky demanded information about the misconduct under Brady v Maryland, arguing that it was material to her guilt as well. She also moved to withdraw from her plea agreement (but not her guilty plea), figuring she’d do better with an open plea that let the court sentence her than she would with a Rule 11(c)(1)(C) plea.

Last week, the 6th Circuit shot her down. The Circuit ruled that the evidence could not possibly be material to Becky’s defense, because she had already pled guilty, so there was no defense left to make. As for the plea agreement, the Circuit said, “While we do not doubt that Stampe sincerely believed that she might avoid some prison time because of her putative cooperation in her co-defendant’s case, the plea agreement contemplated but did not require that possibility. So contrary to her assertion on appeal, it was not the ‘principal purpose’ of the agreement. The main purpose was the exchange of her plea for the government dropping the other charge against her and agreeing to a 168-month sentence.”

mathisEnd Run: John Ham filed a 28 USC § 2241 habeas petition claiming that Mathis v United States – a Supreme court decision that dictated how a sentencing court should apply the “categorical approach” in deciding whether a prior crime was a “crime of violence” under the Armed Career Criminal Act – required that he be resentenced to a lot less time.

John figured that the 4th Circuit’s United States v. Wheeler decision authorized the district court to address his § 2241 petition on the merits. The district court disagreed, and Jim appealed.

Wheeler adopted a four-part test for using § 2241 petitions to attack a defective sentence where a § 2255 motion would be “inadequate or ineffective.” One of those tests is that a petitioner must show a retroactive change in substantive law that happened after the direct appeal and first § 2255 motion.

John claimed that Mathis satisfies that requirement, changing “well-settled substantive law” about how a sentencing court should apply the categorical approach. Last week, the 4th Circuit disagreed.

“Mathis itself made clear that it was not changing, but rather clarifying, the law,” the 4th held. “The categorical approach has always required a look at the elements of an offense, not the facts underlying it… Indeed, Mathis merely repeated the ‘simple point’ that served as ‘a mantra’ in its ACCA decisions: ‘a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct’.”

abandoned210427jpgSee You Around, Chump: Finally, in the 8th Circuit, Charles Ahumada filed a § 2255 motion arguing his attorney abandoned him by failing to file a petition for rehearing on his direct appeal. Not so, the Circuit said. In order to make a 6th Amendment ineffective assistance, a defendant first has to have a constitutional right to counsel. There is no constitutional right to counsel on a discretionary appeal, and a petition for rehearing is exactly that.

Chuck admitted as much, but argued that the Circuit’s Criminal Justice Act plan requiring counsel to file non-frivolous appeals gave him a due process right to effective counsel. “Even assuming there was a breach of the statute, the CJA,” the 8th said, “it does not give rise to a claim for ineffective representation of counsel.”

United States v. Mayhew, Case No 19-6560, 2021 U.S.App. LEXIS 11248 (4th Cir., April 19, 2021)

United States v. Stampe, Case No 19-6293, 2021 U.S.App. LEXIS 11459 (6th Cir., April 20, 2021)

Ham v. Breckon, Case No 20-6972, 2021 U.S.App. LEXIS 11493 (4th Cir., April 20, 2021)

Ahumada v. United States, Case No 19-3632, 2021 U.S.App. LEXIS 11861 (8th Cir., April 22, 2021)

– Thomas L. Root

Another Case of the “Shorts” – Update for April 19, 2018

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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.  Today, we’re doing clean-up with a number of short takes from our most recent newsletter to inmates.

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8TH CIRCUIT RULES MISSOURI 2ND DEGREE BURGLARY DOES NOT COUNT FOR ACCA

burglary160502Chuck Naylor pleaded guilty to being a felon in possession of a firearm. The district court found that four of his prior Missouri 2nd-degree burglary convictions qualified as violent felonies under the Armed Career Criminal Act. On appeal, the 8th Circuit agreed, because it was bound by United States v. Sykes.

But in an April 5 rehearing en banc, the Circuit changed its mind, holding that “convictions under Mo. Rev. Stat. § 569.170 (1979) do not qualify as violent felonies under the ACCA. To the extent Sykes concluded otherwise, it is overruled.”

The decision suggests that a lot of people doing ACCA time because of the Sykes decision will be visiting their local district courts soon with 28 USC 2241 petitions.

United States v. Naylor, Case No. 16-2047 (8th Cir. Apr. 5, 2018)

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FDA SEEKING COMMENT ON MARIJUANA DRUG SCHEDULE

Mike, an alert reader, brought to our attention that the FDA and Trump Administration have asked the public to comment on the “abuse potential, actual abuse, medical usefulness, trafficking, and impact of scheduling changes on availability for medical use of” marijuana and its derivatives. Mike noted that “there are medical benefits, jobs to be had, taxes to be made to go to education, a sure way to help get the people off opioids, not to mention a drop in schedule would help all those incarcerated with mandatory mins.”

Any interested person can comment on the proposal online.

Food and Drug Administration, Case No. FDA-2018-N-1072), International Drug Scheduling; Single Convention on Narcotic Drugs; Cannabis Plant… Request for Comments

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CALLING JUDGE POSNER

paging180419We wrote about Judge Posner’s new pro se assistance organization a few weeks ago, and since then, we’ve heard from a number of people wanting contact information. We still do not have an address, but the editor at Litigation Daily provided us with the organization’s web address:

http://www.justice-for-pro-ses.org
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THE AUSA, NOT THE COURT, PULLS 5K1.1 STRINGS

When a federal defendant assists the authorities prior to his or her being sentenced, the government returns the favor by filing a motion with the sentencing court under Sec. 5K1.1 of the Guidelines, asking for a sentence cut. Sec. 5K1.1 is about the only way a defendant can get a substantial reduction in sentence (the cut averages about 52%), and only the government can make the motion.

An unnamed defendant who helped out the government received his USSG Sec. 5K1.1 motion at sentencing, but the Feds only recommended dropping his 235-293 sentencing range to 135-168 months. That was a nice reduction, but was still above his 120-month statutory minimum sentence. The sentencing judge granted the 5K1.1, but departed downward to 80 months. The government thought that was too much, and appealed.

toughluck180419Last week, the 5th Circuit reversed, holding that the law is clear a court cannot impose a sentence below a statutory minimum for substantial assistance unless the government, in its 5K1.1, specifically moves to go below the minimum. The district court knew this, but justified its sentencing decision by citing its authority “to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a remedy if they find the refusal was based on an unconstitutional motive.” The district court said its bigger reduction was warranted because the government did not take into account the lower Guidelines sentencing range the district court had applied, and overlooked other grounds, such as the fact that Appellee voluntarily withdrew from the conspiracy early on, encouraging others in the conspiracy to quit, volunteering at a local church, and maintaining a job. The district judge said he “disagrees with the concept of mandatory minimum sentencing by which members of the legislature and the executive who do not see the human beings before the Court nevertheless impose on the judiciary arbitrary minimum sentences.”

Tough, the Circuit said. Regardless of the district court’s own policy views about the use of mandatory minimum sentences, the law in this area is clear. And we must faithfully apply it. A motion by the government was required for the district court to depart below the minimum term of imprisonment established by Congress for the drug offense Appellee committed. Thus, it was error for the district court to sua sponte depart from the minimum.”

United States v. Sealed Appellee, Case No. 17-50451 (5th Cir. Apr. 10, 2018)

– Thomas L. Root

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Correcting Some 5K1.1 Sentence Duplicity – Update for March 26, 2018

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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.

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THEY’RE BA-A-A-A-CK

snitch160802A substantial percentage of defendants who get sentenced every year in the federal system cooperate with the government. Rats, snitches, narcs, whatever you call it, cooperating with the authorities is most of the time nothing more than an exercise in self-preservation. The US criminal code has so many offenses carrying harsh and inflexible mandatory minimum sentences, and the advisory Sentencing Guidelines (which are followed by judges about half of the time) can be unforgiving. The only way a defendant can escape application of a mandatory minimum sentence is through cooperation with the government.

If the United States Attorney’s Office files a motion for a downward departure under 18 USC 3553(e) and Sec. 5K1.1 of the Guidelines, a sentencing judge may sentence without regard for mandatory minimum sentences or the advisory Guidelines. Consider a defendant charged with two drug transactions on successive days, at each of which he sold 6 grams of methamphetamine (about the weight of a sugar cube) while carrying a gun. He has a prior state conviction for drug dealing, too, although the conviction is 25 years old. Under 21 USC 841(b), he faced a statutory minimum of 10 years for the drugs, a consecutive 5 years for carrying the gun during the first sale, and another consecutive 25 years for carrying the gun the second day. Under the law, the sentencing judge would have to lock up the miscreant for 40 years (and in the federal system, he would have to serve 87% of that sentence, even if he behaved).

cubes180326But the government wants the guy who put you on the street corner. So it offers to drop one of the 18 USC 924(c) gun charges and not file the required not
ice to force the court to consider your 25-year old prior conviction. This cuts your minimum sentence from 40 years to 10 years. On top of that, the government offers to consider a 5K1.1 motion. All you have to do is cooperate.

Do you do the stand-up thing? Of course, if you’ve always admired the kamikazes. Otherwise, you cooperate. At sentencing, the government files the 5K1.1, recommending a 30% reduction from your statutory minimum 120 months. The court agrees, and you get a sentence of 87 months. Not a bad outcome for having started at 480 months.

It’s little wonder that 30% of defendants facing a drug mandatory minimum sentence get credit for cooperation. More would if the government offered it to them. But there is a dark side (at least if you, the defendant, are willing to so quickly forget the 40 years you faced without the deal).  Inmates who got 5K1.1 downward departures in their sentences that took them below their statutory minimums have been the red-headed stepchildren of the Sentencing Commission’s 2-level reductions.

fineprint180308In our above illustration, the defendant’s advisory Guidelines sentencing range – not considering the statutory mandatory minimum of 480 months – was 18-24 months. The plea agreement our defendant signed contained the usual boilerplate saying the district court would consider applicable guideline provisions, but everyone knew that the statutory minimum of 10 years was what was driving the train, not the advisory Guidelines.

Three times in the last decade, the Sentencing Commission has reduced the base offense levels applicable to drugs by 2-levels per step. The last one was in 2014, at which time 31,089 already-convicted people won retroactive sentence reductions. But when our defendant in the example subsequently applies for the 2-level reduction, the government argues that he expressly acknowledged in his plea that the crime was subject to a mandatory minimum sentence. Thus, the government says, the sentence was based on a statutory minimum, not a guideline and not on “a sentencing range… lowered by the Sentencing Commission” (which is required for a sentence reduction).

The Supreme Court last considered the “based on” language in 2011, and in Freeman v. United States, split 4-1-4, which left only confusion. It takes up the matter again tomorrow in two arguments, Koons v. United States and Hughes v. United States.

stitches180326In Koons, the justices will decide whether defendants subject to statutory mandatory minimum sentences, but who received prison terms below the minimum because they provided substantial assistance to the government, are nonetheless eligible for reductions under 18 U.S.C. §3582(c)(2). The petitioners, five guys who were denied the 2-level reduction approved by the USSC in Amendment 782, lost in front of the 8th Circuit, which declaring that each defendant had received a sentence “based on his statutory mandatory minimum sentence and his substantial assistance” and thus could not claim to have received a prison term “based on a sentencing range that has subsequently been lowered by the Sentencing Commission .”

The USSC issued a policy statement directing that defendants in this position are eligible for reductions, but the government does not care, arguing the Commission may not legally construe or define a sentence as being “based on” a guideline when it was not.

In Hughes v. United States, which will be argued first, the justices will consider the meaning of the 2011 4-1-4 split in Freeman. It is not a slam-dunk for either side in this case, but a favorable ruling – which will come in June – could open the door to 2-level reductions for a number of people who were previously not eligible.

Hughes v. United States, Case No. 17-155 (Supreme Court, oral argument Mar. 27, 2018)

Koons v. United States, Case No. 17-5716 (Supreme Court, oral argument Mar. 27, 2018)

– Thomas L. Root

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Minus One, Plus Two at Supreme Court – Update for December 12, 2017

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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.

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CERTIORARI DENIED TO DAN MCCARTHAN, BUT TWO OTHER SENTENCING CASES GRANTED SCOTUS REVIEW

You may recall McCarthan v. Collins, a case dealing with when and under what terms an inmate may use a 28 USC 2241 motion. Nine federal circuits let inmates file 2241s under the 2255 “saving clause,” which provides that a prisoner may use the 2241 form of federal habeas corpus if it “appears that the remedy by [2255] motion is inadequate or ineffective to test the legality of his detention.”

futility171212Earlier this year, however, the 11th Circuit held that an initial Section 2255 motion is an adequate and effective remedy to “test” a sentence, even when circuit precedent forecloses the movant’s claim at the time of the motion. After all, the Circuit said, a movant could have asked the court of appeals to overrule its precedent, sought Supreme Court review, or both. The saving clause in Section 2255(e), the 11th said, is concerned only with ensuring that a person in custody has a “theoretical opportunity” to pursue a claim, even if, at the time of the initial 2255 motion, the claim was virtually certain to fail in the face of adverse precedent. In other words, you have to raise arguments even when the court has already said the arguments are futile.

Both the 11th and 10th adhere to this draconian view. Dan McCarthan challenged the 11th Circuit interpretation. A few weeks ago, we reported that the Trump Justice Department asked the Supreme Court not to take the case, even though it acknowledged that the legal question is significant and that its new position could condemn inmates to serve out unlawful sentences. A week ago, the Supreme Court denied certiorari to Dan.

Meanwhile two new sentencing cases have been added to the Supreme Court docket. Hughes v. United States revisits the 2011 Freeman v. United States decision. Freeman said that a defendant with a F.R.Crim.P. 11(c)(1)(C) sentence – one where the sentence was fixed in the plea agreement – could get a sentence reduction under retroactive Guidelines changes only were the sentence was somehow tied to the Guidelines. Freeman was a 5-4 decision, and the fifth Justice only concurred, which made her concurring opinion the one that controlled.

undo160812Freeman has been a mess. Hughes gives the Court a chance for a do-over that may let more people with Rule 11(c)(1)(C) sentences reductions.

It frequently happens that defendants cooperate with the government, and are rewarded with a reduction in sentence under Sec. 5K1.1 of the Sentencing Guidelines. In Koons v. United States, the Supreme Court will determine whether a defendant who has a mandatory minimum sentence prescribed by statute, but who gets a 5K1.1 sentence reduction beneath that minimum, can later get a sentence reduction under retroactive Guidelines changes, even where the new sentence is below the mandatory minimum that was voided by the 5K1.1 motion.

Hughes v. United States, Case No. 17-155 (certiorari granted Dec. 8, 2017)

Koons v. United States, Case No. 17-5716 (certiorari granted Dec. 8, 2017)

– Thomas L. Root

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9th Circuit Expands on Sentence Reduction Flexibility – Update for September 13, 2017

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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.

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NICE GUYS DON’T NECESSARILY FINISH LAST

niceA170914Over the past 30 years of the Sentencing Guidelines, the U.S. Sentencing Commission has modified different guidelines to reduce their impact on many occasions. Most of those changes – such as eliminating the “recency” points, which added to criminal history if the new offense was committed within a few years of the end of a prior sentence – applied to people who were sentenced only after the change went into effect.

Some, however, were made retroactive to people already sentenced, which let inmates apply under 18 USC 3582 for a sentence reduction. The most notable of these were the three changes to the drug quantity tables in USSG 2D1.1, which lowered sentencing ranges based on the quantity of drugs a defendant was found to have. The changes, in 2007, 2011 and 2014, led to tens of thousands of sentence reductions being granted.

One would think that a reduction would be simple and mathematical. A defendant sentenced in 2013 had a final sentencing range of 87-108 months, based on possessing 1 kilo of methamphetamine and getting a 3-level reduction for acceptance of responsibility under USSG 3E1.1 and a criminal history of III. Let’s say the judge sentenced him in the middle of that range, to 96 months.

After the Sentencing Commission lowered all of the drug quantities in USSG 2D1.1(c) by two levels in 2014, the inmate files for a sentence reduction. Everything in the calculus – his acceptance of responsibility and criminal history category – remains the same except for lowering the base offense level for a kilo of meth from 30 to 28. A Level of 28, minus 3 levels for acceptance of responsibility, and a criminal history of III, yields a sentencing range of 70-87 months.

Under 18 USC 3582, the judge could decide to lower his sentence all the way to 70 months, lower it only part of the way, or not to lower it at all.

Pretty straightforward. The system worked well when the Guidelines were mandatory, that is, when a judge was required to sentence within the sentencing range except in very limited circumstances. But two factors have conspired to make a hash-up of the system.

snitch161004The first factor arises in cases where a defendant is awarded a downward departure under USSG 5K1.1. Many times, a defendant will end up with a sentence of half or less of what the Guidelines required. The second problem arises because of United States v. Booker, the 2005 case in which the Supreme Court declared mandatory Guidelines to be unconstitutional. Since Booker, the Guidelines have been advisory only, and judges have exercised their freedom to vary from suggested sentencing ranges with much greater frequency.

Because the rules say that a judge may not grant a sentence reduction motion where the adjusted sentencing range is higher than the sentence a defendant originally received, a lot of inmates were stranded, unable to benefit from a reduction of sentence.

The Sentencing Commission, sensitive to the government’s need to enjoy a steady flow of snitches, changed the processing rules so that an inmate with a USSG 5K1.1 departure would have his or her original guidelines before the downward departure adjusted, and then the departure added in again, usually on a percentage basis. If an inmate had a 300-month sentence with a 150-month downward departure, but the original sentencing range fell to 250 months, the court would use the new 250-month figure, and decrease it by 50% (the same ratio as the original departure bore to the original sentence). The inmate’s new sentence would end up being 125 months.

fasttrack170914Occasionally, it would get very squirrelly. In today’s case, for example, an illegal immigrant known in the case caption only as D.M. was caught at the border with a load of meth and heroin. He wisely decided to cooperate with the government, and did so quite well. Because as an illegal alien, he was deportable as soon as his sentence was served, he also signed up for what is known as “fast track” deportation, where he waived hearing and other rights so that ICE could rocket his butt out of the country as soon as he finished doing his time. “Fast track” deportation entitles a defendant to an additional 4-level downward departure under USSG 5K3.1.

But for his initial crime, D.M. must be a pretty nice guy. He quickly and efficiently cooperated with the law, and he agreed to let his deportation roll without legal roadblocks. When the Sentencing Commission’s 2-level drug quantity reduction came along in 2014, the government was so happy with him that it recommended D.M.’s sentence cut to the judge.

The request stymied the district court. D.M.’s judge expressed doubts whether, in reducing D.M.’s sentence, he could consider departures other than the substantial assistance departure. If the court could only consider the substantial assistance departure, then it could not reduce D.M.’s sentence because the minimum available sentence would be longer than the sentence D.M. was serving. Seeking clarification on the issue, the district court ordered further briefing and then demanded the government’s position “in writing” so it could fully consider the reasoning before ruling. The district court defined the issue as being “when a defendant previously received a substantial assistance departure as well as an additional departure for fast-track, in granting ‘a reduction comparably less than the amended guideline range,’ may the Court include in the calculation the fast-track departure?”

The district court reluctantly concluded that USSG 1B1.10 did not allow for the inclusion of the fast-track departure. It was looking like nice guys like D.M. were finishing last.

Last Friday, the 9th Circuit reversed the decision. Guidelines section 1B1.10(b)(2) – which governs sentence reductions like this one – prohibits reducing a sentence below the “minimum of the amended guideline range.” In determining a sentence reduction, USSG 1B1.10(b)(1) provides that “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines… had been in effect at the time the defendant was sentenced.”

However, USSG 1B1.10(b)(2)(B), on which D.M and the Government both relied, provides a specific exemption to this floor, allowing a reduction where “the term of imprisonment imposed was less than the term of imprisonment provided by the guideline range applicable to the defendant at the time of sentencing pursuant to a government motion to reflect the defendant’s substantial assistance to authorities.”

The 9th admitted that 1B1.10 “is not a model of clarity. Nonetheless, we conclude that the most natural reading of the policy statement, its history, and the practical consequences of opposing interpretations, all favor the conclusion that it allows a court to consider additional applicable departures in an original sentence, not just the deduction specifically attributed to substantial assistance.”

niceB170914Thus, because D.M. had a substantial assistance departure, any other departures he may have gotten – in this case, the fast track departure – could be considered as well. If 1B1.10(b)(2) did not say that, the appeals court argued, then no one could tell what it means, and in such a case, “D.M. would nonetheless be eligible for consideration of a reduced sentence under the rule of lenity.”

D.M. is already out of prison and home in a nameless country located somewhat south of here. Sometimes, nice guys do not finish last after all.

United States v. D.M., Case No. 16-50243 (9th Cir., Sept. 7, 2017)

– Thomas L. Root

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District Judge Won’t Go Along With the Government’s Program, Gets Slapped – Update for June 28 ,2017

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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.

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SUPER MARIO

mario170628Mario Crancho, a trucker from Mexico, got busted in Arkansas with 43 kilos of coke hidden in his trailer. He wisely agreed to cooperate, and proceeded to make controlled deliveries, identified stash houses and debriefed extensively on the trans-border coke trade.

Of course, the government freely used its considerable powers to assist Mario, too. First, the government somehow failed to pass on to the Presentence Report writer the actual drug quantity Mario had shipped, instead mentioning only two of over 20 trips Mario had made from south of the border. This conveniently omitted probably 95% of the quantity he had actually shipped, leaving him with a very favorable advisory sentencing range of 168-210 months. The district judge wondered why, but lacking any cooperation from the parties in providing the right number, he ultimately adopted the PSR “without change.”

Then, at the sentencing hearing, the prosecution waxed rhapsodic about Mario’s assistance, calling it very substantial and asking for a 50% sentence cut from the low end of his guidelines pursuant to a USSG § 5K1.1 downward departure.

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So how many pallets of Mario’s cocaine did the court not hear about? Inquiring minds – including the judge’s – want to know…

The district court reluctantly granted the government’s 5K1.1 motion, concluding that Mario had provided substantial assistance. But the judge was troubled, and pretty clearly had had a bellyful of these kinds of deals. The court said he was “really struggling with this because, while he has provided substantial assistance, what it does is shows me the breadth of… his involvement in these drug crimes, and it’s huge.” The district court had “seen people with not nearly this culpability go to jail for extended periods of time” and was “struggling with the 50 percent reduction and with the low end of the guidelines.”

And isn’t that the problem? The government has so much power to shower love on people who assist it, no matter their prior culpability. And the poor shmuck who peddled nickel bags on the corner. He didn’t know nuthin’, and so he’s got no information to trade. Watch the U.S. Attorney’s young guns hammer that kid at sentencing.

hammer160509However, when Mario’s judge expressed his misgivings, the government doubled down, becoming even more effusive. It argued Mario was super, having placed himself in great personal danger by making the controlled deliveries, that he began cooperating with the government at his first opportunity (forgetting his previous 21 coke runs from Sinoloa to North Carolina), and that had provided other valuable information as well. Defense counsel chimed in that Mario was a great guy and had a successful trucking business (that success helped no doubt by payments received for shipping hundreds of kilos of coke to the Tarheel State).

The government’s happy talk did not allay the district court’s concerns:

The problem I have with this is he’s given the opportunity to cooperate because he was so high up and because he was driving so much drugs and he was dumping that crap here in Winston-Salem, and we send people to jail every day for .6 grams of drugs, and it is massive amounts of drugs, and… in terms of the equity in sentencing… I can tell you I am not going to the low end, and I am still struggling with whether or not I am going to do the actual total 50 percent.

The judge sentenced Mario to 210 months, the top of the guidelines, and then cut it by 40% for substantial assistance. So instead of walking out of the courtroom with 84 months, Mario ended up with 126 months. That’s 44 months more than Mario expected, for the math-challenged among us.

Mario appealed, and on Monday, the 4th Circuit slapped the district judge’s hand.

Fourth Circuit case law requires a district court determining the extent of a 5K1.1 departure to consider assistance-related factors only. The district court clearly found Mario’s assistance to be substantial, but then judged the 50% reduction not on the extent or quality of Mario’s assistance but instead to the scope of the charged conspiracy and the level of Mario’s culpability in that conspiracy, questioned the equity of giving Mario a lower sentence than is often imposed on less culpable defendants, and condemned the destructive effect of the “junk” that Mario was “dumping” on the community.

The 4th Circuit's subtle advice to the district judge...
The 4th Circuit’s subtle advice to the district judge…

The Circuit admitted there was no problem relying on those other factors in setting the 210-month end of the guidelines, but the district court used it again in selecting a 40% instead of 50% reduction. The Court of Appeals said, “these concerns, which focus on facts related to the charged conspiracy, simply bear no relation to the nature, extent, and significance of the defendant’s assistance.”

Bottom line: The district judge was substituting his judgment for the prosecutor’s. There’s little room for that kind of judicial independence under the current sentencing regime.

The case was remanded for resentencing.

United States v. Crancho, Case No. 15-4760 (4th Cir. June 26, 2017)

– Thomas L. Root

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