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Curb Your Enthusiasm, Mr. Prosecutor – Update for October 1, 2024

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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.

IF YOU SEE SOMETHING, SAY SOMETHING

seesomethingB241001It’s hard to keep track of how many people get tripped up because their lawyers – who normally never shut up – fail to speak up when an objection is warranted.

The result of counsel’s reticence is that the appeals court would only review for plain error, and proving F.R.Crim.P. 52(b) plain error is hard to do.

Nathaniel Acevedo-Osorio had sexual contact with a 15-year-old girl at his boxing gym. He had sex with her many times and used coercion to stalk her and force her to send him sexually explicit photos. The abuse went on for four years before Nat was arrested. It was pretty ugly, but if you want details, click on the link to the decision.

Nat’s lawyer cut the deal of the century, getting the government to agree to recommend a 120-month sentence, the mandatory minimum, in a plea agreement that glossed over much of the uglier facts. The presentence report wasn’t so rosy, however, reciting the details of the years-long offense and setting the Guidelines sentencing range at 292-365 months.

At sentencing, Nat’s lawyer emphasized his client’s turbulent upbringing, the recent murder of his brother, and his family’s support, and she put the mothers of his kids and his boxing coach on the stand to testify to his good character. Counsel pointed to Nat’s having to do some state time because of a probation violation and having to register as a sex offender as reasons to accept the jointly recommended 120-month sentence.

The government offered only the following argument: “Good morning, Your Honor. On behalf of the Government, we would be recommending 120 months pursuant to the plea agreement. Thank you.”

milquetoast241001Inexplicably, Nat’s lawyer did not object to the government’s milquetoast recommendation. The district judge hammered Nat with 292 months and 15 years of supervised release (not that I’m complaining that it was uncalled for… Again, read the facts in the decision if you think I’m being draconian.

Last week, the 1st Circuit held that the government violated the plea agreement but upheld the sentence anyway.

The government may breach a plea agreement by doing something that it promised not to do (such as promising to make no sentencing recommendation but making one anyway) or by failing to do something that it promised to do (such as promising to oppose a Guideline adjustment but then not doing). Even when the government is in “technical compliance” with the plea agreement, the government may not merely pay “lip service” to the plea agreement. A plea agreement has an implied obligation of good faith and fair dealing. As the 1st Circuit put it, “The defendant is entitled to both the benefit of the bargain struck in the plea deal and to the good faith of the prosecutor.”

Generally the government has no implied duty to explain a plea deal’s recommended sentence. Nevertheless, the 1st said that “the government may be obliged to offer some minimal explanation in the rare circumstance in which the parties agree to jointly recommend a sentence that amounts to such a dramatic downward variation that, without some justification by the government, the district court [would be] left to speculate about what rationale might reasonably support such a seemingly off-kilter, well-below guidelines recommendation.”

Here, the Circuit said, the 14-year difference between what the government agreed to and what the Court gave Nat “leads us to conclude that… the government’s failure to provide at least some explanation for its decision to lend its prestigious imprimatur to such a dramatic downward variation likely caused the district court to view the government’s ‘stand by’ statement as just hollow words, undermining any notion that the government viewed the plea agreement as fair and appropriate… In short, Nat did not get what he bargained for: a sentencing hearing in which an inevitably skeptical court could at least comprehend why, in the government’s view, the sentence was proper.”

lawyerjoke180807Nevertheless, the 1st said, because Nat’s lawyer did not object to the government’s mumbled recommendation at sentencing, plain error review applied, and “we cannot conclude that the error was indisputable in light of controlling law.”

Nat lost his appeal because his lawyer didn’t say something when the government whiffed on its obligation. Still, he has a great 28 USC § 2255 issue.

Some consolation.

United States v. Acevedo-Osorio, Case No. 21-1708, 2024 U.S. App. LEXIS 24236 (1st Cir. September 24, 2024)

– Thomas L. Root

Two Circuits Blast Government ‘Dog Whistle’ Plea Agreement Breaches – Update for June 10, 2024

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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.

‘YOUR HONOR, WE RECOMMEND A MINIMAL SENTENCE FOR THIS AWFUL SCUMBAG’

dogwhistle240610The Government is well known for its dog whistles, silent signals telling the Court that while it says it recommends some sentence agreed to in a plea agreement, it’s really dumping all sorts of dirt on a defendant intended to goad the judge into sentencing well above the agreed-on term.

Last week, two Circuits said the Government had gone too far.

Gerardo Farias-Contreras pled guilty to meth distribution in exchange for the government’s promise to recommend the bottom of a 151-188 month sentencing range.

In its sentencing memo, the government did what it promised, recommending a 151-month term. But the devil’s in the details. In the same memo, it argued that Gerry had been “convicted of an unquestionably serious offense” and that “drug trafficking is nothing less than pumping pure poison into our community.” Its memo quoted drug overdose death statistics, a book about the families of living drug addicts, and a “decades-old 5th Circuit decision that suggests drug dealing is a ‘grave offense’ worse than murder.” Claiming that Gery had “the top… criminal culpability in this case” and had been dealing for 30 years, the memo asserted that “ultimately, a significant sentence was warranted.”

At sentencing, the government said it stood by its recommendation, but that the recommendation had been the subject of much discussion in its office because Gerry “is at the top of the food chain in terms of criminal culpability… we have this individual, multiple years, multiple pounds, a massive amount of drugs that he is responsible for.”

The Court heard the government’s dog whistle and sentenced Joe to 188 months. Gerry didn’t object at sentencing like he should have, but on appeal he argued the government had breached its plea agreement.

pleadealb161116Last week, the 9th Circuit reluctantly upheld Gerry’s sentence. It noted that while the government promised to recommend a low-end sentence, “it spent five pages in its sentencing memorandum arguing for a ‘significant sentence’ and ‘made several inflammatory arguments, including in its sentencing memorandum… What’s more, the Circuit said, “the government seemed to suggest that some prosecutors in its office did not agree with the low-end recommendation” in light of Gerry being “at the top of the food chain in terms of criminal culpability…” thereby “winking at the district court to impliedly request a different outcome.”

The 9th said that the government is allowed to counter a defendant’s argument for a lower sentence, but that its “response must be tethered to its obligations under the plea agreement, even when responding to the defendant’s specific request for a downward departure or to the court’s questions… The government must comply with the letter and spirit of the plea agreement… This is a fact-specific inquiry based on contract principles. Courts should look at the totality of circumstances and consider… the sequencing, severity, and purpose of the statements.”

Because Gerry had not objected to the government’s dog whistle at sentencing, the error was not “plain” under F.R.Crim.P. 52, so the Circuit upheld the sentence.

Meanwhile, in the 1st Circuit, Yavier Mojica-Ramos made a deal on his 18 USC § 922(o) machinegun charge pursuant to which the government would agree to recommend a within-Guidelines sentence. The government filed a sentencing memorandum requesting an upper-end guidelines sentence of 46 months, but attached about 250 photos and a video taken from Yavier’s cellphone showing a lot of guns and drugs, with the video showing “an individual resembling Yavier… recklessly brandishing an assault-style rifle by repeatedly pointing the barrel at the individual who is recording the video.”

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The government said the photos and video “are additional evidence that Yavier has an interest in… other criminal behavior beyond the machinegun count charged.” Relying on what it called “alarming content,” the government urged the court to consider the cellphone content as “additional information” on Yavier’s criminal activity. The government fumed that “[t]he danger to the community and the serious nature of the offense should be considered exceptional in this case” and highlighted the “high rates of gun violence in Puerto Rico, the purported deterrent effect of lengthy sentences for gun offenders, and the particularly strong need to protect the public from Yavier.”

Yavier demanded that the government honor its obligations under the plea agreement, but the district court denied the motion, hammering Yavier with a 72-month upward-variant sentence.

Last week, the 1st Circuit reversed Yavier’s sentence. The Circuit rejected the government’s excuse that its “duty of candor” required that it provide the cellphone contents to the court, holding that such a duty

does not allow it to goad the court into relying on uncharged conduct without providing any corroborating evidence that Yavier was involved in the alleged firearm and drug crimes depicted in the cellphone content. Aside from stating that the images were extracted from Yavier’s phone, the government did not attempt to demonstrate by a preponderance of evidence that Yavier was involved in the purported crimes… In fact, the government concedes that it did ‘not submit evidence to support’ finding that ‘any [of the] substances depicted in the photos’ were actually illegal drugs, ‘any guns were used in connection with drug trafficking or any other crimes,’ or that Yavier ‘physically possessed’ any of the pictured drugs or guns.

ausalies171207The Circuit concluded that “the government’s insistence that the court consider unproven conduct—seemingly under the guise of identifying public safety and deterrence issues—further signaled to the court that the prosecutor did not genuinely believe the recommended guidelines sentence was appropriate. Indeed, in so doing, the government suggested a basis for the court to vary upward while neglecting our sentencing caselaw’s limitations on considering uncharged conduct.”

By effectively urging the court to impose a longer sentence “within a context suggesting that the [government] had in mind something greater than” the within-guidelines sentence the parties agreed upon,” the 1st ruled, “the prosecutor wrongfully undermined the plea agreement.”

United States v. Farias-Contreras, Case No. 21-30055, 2024 U.S.App. LEXIS 13231 (9th Cir. June 3, 2024)

United States v. Mojica-Ramos, Case No. 22-1204, 2024 U.S.App LEXIS 13794 (1st Cir. June 6, 2024)

– Thomas L. Root

Lying Down with Dogs – Update for December 7, 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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DEFENDANT SANDBAGGED BY AUSA PLEA DEAL BREACH GETS NEW SENTENCING

Like 94 out of 100 defendants, Kamal King-Gore made a deal with the government after his arrest on drug charges. One of the terms of the plea agreement, a fairly common provision, stipulated that nothing Kamal told the government in his proffer would be used against him.

fleas171207At sentencing, however, the AUSA breached the agreement by telling the court what Kamal had said at the debriefing, specifically evidence Kamal had given the government that portrayed him in fairly bad light. While the government recommended a 188-month sentence like it was supposed to do, it did so while reporting to the judge that  Kamal was a wholesale drug seller and explaining in detail the quantities Kamal had moved.

Kamal should know that if you lie down with dogs, you’re going to probably get up with fleas. Speaking of dogs, the judge – who had no idea she was being treated to information  Kamal had told the government only because it promised not to use them against him – heard the government’s dog whistle loud and clear. She obligingly branded Kamal a wholesaler (a term first used by the government) with a serious record. Nevertheless, the court sentenced Kamal to 162 months, less than the time the government agreed to recommend.

Some people are never satisfied, and you can drop Kamal into that camp. He appealed, arguing that while the government kept its word on the amount of time it recommended, it talked out of school about things it learned in the proffer, such as that Kamal had cooked up a quarter kilo of cocaine into crack. 

ausalies171207On appeal, the government admitted it broke its word, but argued that its breach did not hurt Kamal because there was plenty in the record that would have set off the judge anyway, and anyhow, he got less than his Guidelines range. Even without its pulling a data dump on Kamal at sentencing, the government said, the district judge would have hammered him.

Last week, the D.C. Circuit disagreed, reversing the sentence. The AUSA argued the “record shows ample independent evidence for the district court to conclude” Kamal “deserved a higher sentence.” This is so, the D.C. Circuit said, but the “question isn’t whether defendant’s prison term would have been drastically shorter—just whether it was reasonably likely that the prison term would not have been as long had the district court considered only permissible factors.”

dogcouch171207Here, the sentencing judge picked up the term “wholesale seller” only after the government used it in its sentencing arguments. And the government supported its use of the “wholesaler” term by referring to a sale that appeared nowhere in the record. That was enough to convince the Court of Appeals that Kamal was entitled to resentencing in front of a different judge who had not heard about what Kamal said at his proffer.

United States v. King-Gore, Case No. 13-3010 (D.C. Cir. Nov. 28, 2017)

– Thomas L. Root

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Some Legal Kibbles – Update for March 20, 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.

kibbles170320Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…

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US ATTORNEYS TO FOCUS ON VIOLENT CRIME, WHICH INCLUDES DRUG TRAFFICKING

There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”

Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.

violent160620Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.

Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.

The Crime Report, At ‘critical moment’ under Trump, report gives hard facts on incarceration (Mar. 14, 2017)

The Trace, Meet the hardliner Jeff Sessions picked to carry out his violent crime crackdown (Mar. 15, 2017)
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WE’VE GOT YOUR NUMBER

The U.S. Sentencing Commission last week released its 21st annual Sourcebook of Federal Sentencing Statistics, covering fiscal year.

stats170320The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).

Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:

•   the number of cases ending with guilty pleas remained steady at 97%

•   offenses included 32% drug, 30% immigration, white-collar (including fraud) 13%, guns 11%, child porn 3%.

•   14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.

•  two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.

• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).

•   in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.

U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics 2016  (Mar. 12, 2017)
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PLEA BREACHES AND PLAIN ERROR

Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.

But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.

betray170320Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.

Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”

When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.

United States v. Kirkland, Case No. 16-40255 (Mar. 17, 2017)

– Thomas L. Root

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What’s in a Name? – Update for February 24, 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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A SHAKESPEARE FESTIVAL

Bruce Swisshelm signed a plea agreement to resolve his bank fraud indictment. It included the fairly Government promise not to argue for a sentence above the top of the Guideline range, and the defendant would not argue for a sentence below the bottom.

rose170224Bruce’s sentencing range was 57-71 months, but his attorney vigorously argued for a downward variance and bombarded the court with letters from the community attesting to the fact that Bruce was a great guy. The Government objected to her tactics, arguing that defense counsel’s arguments and the letters violated the plea agreement. Bruce’s lawyer disagreed, saying the agreement only prohibited her from arguing for a downward departure, and all she was asking for was a variance.

Variance, departure? A difference, is it not? Bruce’s attorney was undoubtedly emulating Renaissance lawyer Juliet, who once argued, “What’s in a name? That which we call a rose, By any other name would smell as sweet.” And there is little doubt the judge found her arguments as sweet as a rose: despite the 57-71 month Guidelines range and the terms of the plea agreement, the court sentenced Bruce to 12 months and a day.

The Government appealed, arguing in essence, “Lord, what fools these mortals be” if they think they did not breach the plea agreement. Earlier this week, the 8th Circuit agreed.

Defense counsel just wanted the court to picture her client in the best possible light.
          Defense counsel just wanted the court to picture her client in the best possible light.

The Court of Appeals admitted that there are a lot of case out there holding  what’s to be done when the Government breaches a plea agreement, but that it had never decided the appropriate remedy when the defendant violates the deal. The Court said, “We do not now decide the proper remedy for any future defendant’s breach of a plea agreement, but in the particular circumstances of this case we decline to treat Swisshelm’s breach of the plea agreement differently from a breach by the government.”

A governmental breach of a plea deal always carries with it constitutional due process concerns. Those concerns are not present in where the breaching party is the defendant, but “principles of contract interpretation” nevertheless causes the Court to hold Bruce “accountable to the terms of the plea agreement. The parties agreed that they would not request a sentence outside the Guidelines range, and the government agreed not to pursue the several additional charges and Guidelines enhancements it could have lodged against Swisshelm in return for his guilty plea… Swisshelm thus received the benefit of the plea agreement—the government’s forbearance from seeking an above-Guidelines sentence—but deprived the government of its corresponding bargained-for benefit—Swisshelm’s forbearance from seeking a below-Guidelines sentence. “

Defense attorneys know that some clients just can't be prettied up at sentencing, no matter how hard one tries...
     Defense attorneys know that some clients just can’t be prettied up at sentencing, no matter how hard one tries…

The Court ordered resentencing in front of a different judge, which is precisely the remedy Bruce would have gotten if the Government had breached. Bruce – who had to think he had a real soft-touch sitting on the bench – complained that a different judge was hardly necessary and that his breach had been harmless. Doing the math, the 8th figured that a decrease in sentence from 57 months to 12 months was quote material. It said the different judge “may in the exercise of discretion consider the letters submitted on Swisshelm’s behalf for the purpose of determining a sentence within the Guidelines range, but not for the purpose of considering a downward departure or variance from the Guidelines range.”

The Court noted that appointment of a new judge in cases like this is standard, and was “in no sense to question the fairness of the sentencing judge; the fault here rests on the defendant, not on the sentencing judge.”

Bruce can’t be thinking that “All’s well that ends well.” He’s already served his 12-month sentence, and was just released last month. He’s now looking to going back for another 45 months, at least.

United States v. Swisshelm, Case No. 16-1416 (8th Circuit, February 22, 2017)

 – Thomas L. Root

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