Tag Archives: career offender

Virus or No, The World Keeps Turning on Hobbs Act and FSA – Update for March 31, 2020

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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.

MEANWHILE, A COUPLE OF IMPORTANT FAIR SENTENCING ACT/HOBBS ACT CASES…

Two appellate cases handed down last week would have been headliners any other time except for now, with the coronavirus crowding everything else out of the news.

crackpowder160606In 2001, Brandon Gravatt was convicted of conspiracy to possess with intent to distribute 5 kilograms or more of powder cocaine and 50 grams or more of crack cocaine (21 USC § 846). He pled guilty to the dual-object drug conspiracy charge, facing sentences of 10 years-to-life for the coke and 10-to-life for the crack. The court sentenced him to just short of 22 years.

After the Fair Sentencing Act became retroactive due to the  provision at Section 404 of the First Step Act (passed in December 2018), Brandon filed for a sentence reduction because the crack statutory minimum had fallen to five years. But the District Court denied his motion, because the 10-to-life sentence for the powder cocaine remained the same.

Last week, in a decision awaited by a lot of people, the 4th Circuit reversed. It held that even in a multi-object conspiracy like Brandon’s – where the penalties of one object (possession of crack) were reduced by the FSA while the penalties of the other (powder cocaine) were not – if the crack minimum sentence fell, Brandon was eligible for resentencing. The Circuit said because Brandon’s “sentence involved a covered offense under Section 404(a) [of the First Step Act], the district court should have reviewed Gravatt’s motion on the merits, applying its discretion under Sections 404(b) and (c).”

Of course, the 4th said, the quantity of powder cocaine in Gravatt’s case could mean the district court would decide not to lower his sentence. “Our decision today,” the Circuit said, “only requires that Gravatt’s sentence receive a substantive review. It should not be construed as expressing any view on how the district court should rule.”

Meanwhile, the 11th Circuit held last week that a Hobbs Act robbery was not a crime of violence for purposes of determining whether a defendant was a “career offender” under Chapter 4B of the Guidelines.

violence151213Joining the 6th and 9th Circuits, the 11th held that because the Guidelines definition of robbery and extortion only extends to physical force against persons, while under Hobbs Act robbery and extortion, the force can be employed or threatened against property as well, the Hobbs Act (18 USC § 1951) is broader than the Guidelines definition, and thus cannot be a crime of violence for career offender purposes.

Unfortunately, because 18 USC § 924(c) does include threats to property as well as to people, the 11th Circuit holding does not apply to defendants with § 924(c) counts supported by Hobbs Act convictions.

United States v. Gravatt, 2020 U.S. App. LEXIS 9053 (4th Cir Mar 23, 2020)

United States v. Eason, 2020 U.S. App. LEXIS 9096 (11th Cir Mar 24, 2020)

– Thomas L. Root

Guidelines Career Offenders Out of Luck on 2255s – Update for September 9, 2019

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6th CIRCUIT SAYS GUIDELINES CAREER OFFENDERS WANTING HAVIS OR DAVIS ADJUSTMENTS ARE OUT OF LUCK

toughluck180419Dwight Bullard pleaded guilty to distributing heroin and being a felon in possession of a firearm. At sentencing, the district court determined that he qualified as a career offender under the Sentencing Guidelines, a provision that sets sentencing ranges stratospherically high for people convicted of two prior drug crimes or crimes of violence.

One of Dwight’s prior drug offenses was for attempted to sell drugs. After the 6th Circuit’s decision in United States v. Havis, which held that attempted drug crimes did not qualify a predicate offense for Guidelines career offender status, Ballard challenged his own Guidelines career offender status in a post-conviction motion under 28 USC § 2255.

The difference between being a career offender and not being a career offender is huge, sometimes the difference between under five years and nearly 20 years in prison. The sentencing ranges are advisory, of course – courts are not obligated to follow them, but do over half of the time – but nevertheless the sentencing ranges are very influential.

The district court denied his 2255 motion, so Dwight appealed.

On appeal, the government admitted that Dwight was right, because Havis held the Guidelines definition of a controlled substance offense does not include attempt crimes. The 6th Circuit agreed that if Dwight received his sentence today, he would not be a Guidelines career offender.

lawyermistake170227But a non-constitutional challenge to an advisory guidelines range may not be raised in a post-conviction motion such as a 2255. Ballard tried to get around that problem by claiming that his trial and appeals attorneys were ineffective, because they did not raise the argument that ultimately won in Havis. Ineffective of counsel is a Sixth Amendment claim, and thus a constitutional issue.

Nevertheless, the 6th Circuit upheld dismissal of Dwight’s 2255. While his claim was cognizable under 2255, the Court said, Dwight could not show that his attorneys were ineffective for not raising the issue, and even if they had been, he had suffered no prejudice.

lovelawyerB170811Before Havis, there was no case precedent in the Circuit that would have held Dwight’s Arizona prior not to be a controlled substance offense. That being the case, the Circuit held, it was entirely reasonable for Dwight’s trial counsel not to object that the prior was used to make Dwight a career offender. As it is, his trial attorney argued at sentencing that Dwight was not “an authentic career offender,” and thus got him sentenced 152 months under his minimum Guidelines.

Even if Dwight’s lawyer should have raised the same argument that later won in Havis, the 6th Circuit held, the district court outcome would not have been different. This is because under the case law at the time, the district court would have counted the Arizona conviction toward career offender status even if Dwight’s lawyer had objected.

In so many words, the 6th Circuit says people who received career offender sentences because of what courts now recognize as a mistake, people who would never qualify for such a status today because of Havis or Davis, are simply out of luck.

Bullard v. United States, 2019 U.S. App. LEXIS 26643 (6th Cir. Sept. 4, 2019)

– Thomas L. Root

F.R.Crim.P. 36: There’s Life in the Old Carcass – Update for July 2, 2019

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MAYBE RULE 36 IS NOT TOOTHLESS AFTER ALL

Everyone knows that Rule 36 of the Federal Rules of Criminal Procedure permits a defendant to move to correct a clerical error in the criminal case judgment. Over the years, I have found it useful mainly to correct mistakes in the defendant’s name, which invariably become part of the BOP record. Beyond that, we all are aware that Rule 36 cannot correct mistakes of fact or law, and for sure cannot lead to a reduced sentencing.

error161101Last week, the 4th Circuit suggested that maybe we have it wrong. Lamont Vanderhorst’s district court denied his Rule 36 motion to correct a clerical error in his Presentence Report. The PSR characterized one of his state convictions as “conspiracy to sell and deliver cocaine.” In fact, the conviction was “conspiracy to traffick [sic] cocaine by transportation.”

As a result of the clerical error, the district court wrongly sentenced Lamont as a career offender.

The district court denied the motion, holding that Rule 36 cannot serve as a means of pursuing resentencing. The Circuit disagreed, holding that “Rule 36 may serve as an appropriate vehicle for a defendant to obtain resentencing when a clerical error likely resulted in the imposition of a longer sentence than would have been imposed absent the error.” The 4th said that “when an error is purely a ‘clerical error in a judgment, order, or other part of the record, “the policy of finality is trumped and a court is authorized to correct the error at any time.”

Unfortunately, Lamont had four other priors that supported his career offender designation, so he was denied relief anyway. But the principle makes Rule 36 potentially a powerful gadget in the collateral-relief toolbox.

United States v. Vanderhorst, 2019 U.S. App. LEXIS 18886 (4th Cir. June 25, 2019)

– Thomas L. Root

Sentencing Commission Cannot Add to Drug Offense Definition, 6th Circuit Says – Update for June 10, 2019

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NEITHER FISH NOR FOWL

fishfowl170803Everyone who paid attention in high school government class knows there are three branches of the federal government, the legislative (Congress), the executive (President and the agencies), and the judicial.

And then there’s the United States Sentencing Commission. It is part of the judicial branch, but it is part legislative, too, answering to Congress (which has the right to pass on any amendments, and veto those of which it disapproves). Legal scholars might say it’s neither fish nor fowl.

In 2017, Jim Harvey pled guilty to felon-in-possession of a firearm. Under the Sentencing Guidelines, a defendant convicted of a 18 USC 922(g)(1) offense starts with a base offense level of 14, but that level increases to 20 under USSG § 2K2.1(a)(4) or (6) if he or she has a prior conviction for a “controlled substance offense.” At sentencing, the district court decided that Jim’s 17-year-old Tennessee conviction for selling or delivering cocaine was a “controlled substance offense” under the Guidelines.

Jim objected because the Tennessee statute criminalized both sale and delivery of cocaine. Under state law, “delivery” of drugs includes the “attempted transfer from one person to another of a controlled substance.” Jim argued that the prior conviction was not a controlled substance offense because the Guidelines’ definition of “controlled substance offense” does not include “attempt” crimes.

Jim was right that the Guidelines themselves do not include “attempt” offenses. However, each of the Guidelines comes with its own handy commentary and application notes, helpful annotations by the Sentencing Commission to aid users in what it considers the “proper” way to apply each Guideline. The commentary at the end of USSG § 4B1.2(b), which (among other things) defines a controlled substance offense for Guidelines purposes, directs that the definition of controlled substance offense in the text necessarily includes ‘the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.’

robbank190610Not so, Jim argued. The Guidelines text itself says nothing about attempt, and the Sentencing Commission, he complained, has no power to add attempt crimes to the list of offenses in § 4B1.2(b) through its own commentary. It would be like West Publishing adding a note after the bank robbery statute saying that bank robbery includes the offense of shaking a few quarters out of your kid’s piggy bank for bus fare.

Last Thursday, the 6th Circuit agreed with Jim.

The Guidelines commentary, the Court said, “never passes through the gauntlets of congressional review or notice and comment. That is generally not a problem, the Supreme Court tells us, because such commentary has no independent legal force — it serves only to interpret the Guidelines’ text, not to replace or modify it. Courts need not accept an interpretation that is “plainly erroneous or inconsistent with” the corresponding guideline.

bootstrappingBut the problem comes where the commentary does more than just interpret, but instead tries to bootstrap the Guideline into saying something more than what Congress approved. In this case, the commentary in question does not “interpret,” but rather supplements. The Commission was perfectly capable of adding “attempt” to the Guideline itself. Clearly, the 6th Circuit noted, the “Commission knows how to include attempt crimes when it wants to — in subsection (a) of the same guideline, for example, the Commission defines “crime of violence” as including offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another.”

To make attempt crimes a part of 4B1.2(b), the Commission did not interpret a term in the guideline itself, but instead used Application Note 1 to add an offense not listed in the Guideline. Application notes, the Court held, are to be “interpretations of, not additions to, the Guidelines themselves.” If that were not so, the institutional constraints that make the Guidelines constitutional in the first place — congressional review and notice and comment — would lose their meaning.

Jim’s case was remanded for resentencing.

United States v. Havis, 2019 U.S. App. LEXIS 17042 (6th Cir. June 6, 2019)

– Thomas L. Root

Dance With The Girl Who Brung You – Update for April 30, 2019

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GOVERNMENT DENIED A MULLIGAN IN § 2255 ARGUMENT

A crusty old judge I once knew liked to warn attorneys they had to “dance with the girl who brung” them. That is, if they made a claim in their opening statement, they had to stick with that claim, and not try to slip in a new theory when the old one started looking weak.

mulligan190430The 4th Circuit told the government the same thing last week. Antwan Winbush filed a post-conviction motion under 28 U.S.C. § 2255 that argued his attorney had been ineffective at his sentencing. Specifically, the court attributed two prior drug convictions to Antwan, making him a “career offender” under the Sentencing Guidelines, and exposing him to a dramatically potential higher sentencing range. Antwan arued his lawyer should have noticed that one of the two priors was inapplicable.

The government admitted Antwan was right about one of the drug prior convictions not counting for “career offender” (because the conduct it addressed was drug possession, not drug trafficking). That did not matter, the government said, because Antwan was not prejudiced. It seems Antwan also had a prior conviction for an Ohio robbery, and that prior offense would have counted to make him a Guidelines “career offender” even without the defective prior drug conviction.

Antwan protested that neither the U.S. Attorney nor the court identified the robbery conviction as a “career offender” qualifier at sentencing. Instead, both relied only on the two prior drug convictions.

The district court said it did not matter which convictions the government brought to the dance back at sentencing, because it was free to watusi with the heretofore-unidentified robbery conviction now. But last week, the 4th Circuit disagreed.

The Circuit, noting that Antwan’s presentence report “did not designate his robbery conviction as a predicate conviction for the career offender designation,” ruled that as a result, Antwan “was given no notice at sentencing that his robbery conviction could be utilized as a predicate conviction for a career offender enhancement.”

uglygirl190430The government “has already been given one full and fair opportunity to offer whatever support for the career offender enhancement it could assemble,” the Court held. Because the government did not identify the robbery as a conviction on which it intended to rely to support a Guidelines “career offender” enhancement at sentencing, it cannot decide to do so later when it finds it convenient, because one of the convictions it did rely on to support the career offender designation ends up not counting.

“To hold otherwise,” the 4th ruled, “would be to allow the government to change its position regarding which convictions support the enhancement now that one of its original choices cannot do the job. Worse yet, allowing the government to change positions for the first time on collateral review would unfairly deprive the defendant of an adequate opportunity to respond to predicate offense designations, especially given the fact that a defendant has the burden of proof at the 2255 stage but no right to counsel.”

You dance with the girl who brung you.

United States v. Winbush, 2019 U.S. App. LEXIS 11853 (4th Cir. Apr. 23, 2019)

– Thomas L. Root

Some of It’s Violent, Some of It’s Not – Update for February 5, 2019

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MIXED WEEK FOR CRIMES OF VIOLENCE

Defendants arguing that prior state convictions were not crimes of violence enjoyed mixed results last week.

violent160620A 10th Circuit panel ruled in United States v. Bong that robbery under Kansas law can be accomplished with minimal force that falls short of the “violent force” required under the Armed Career Criminal Act’s elements clause. What’s more, Kansas aggravated robbery – a robbery committed by someone armed with a dangerous weapon or who inflicts bodily harm during course of a robbery – is not violent, either. Merely being “armed” with a weapon during the course of a robbery, the court said, is not sufficient to render the state offense a “violent crime” for ACCA purposes.

Things did not go so well in the 2nd Circuit. There, the court held in United States v. Thrower that 3rd degree robbery under N.Y. Penal Law 160.05 is a crime of violence for ACCA purposes. The crime requires “forcible stealing,” which is defined as common to every degree of robbery in New York State, requires use or threat of the immediate use of physical force sufficient to prevent or overcome victim resistance. “By its plain language,” the Circuit said, “the New York robbery statute matches the Armed Career Criminal Act.” The holding includes not just 3rd degree robbery, but by necessity all levels of New York robbery.

A 9th Circuit panel, however, held in United States v. Vederoff that 2nd degree assault under Wash. Rev. Code 9A.36.021(1) is overbroad when compared to the generic definition of aggravated assault, because the statute encompasses assault with intent to commit a felony. Because Washington’s 2nd-degree assault statute is indivisible, the panel could not apply the modified categorical approach, and therefore concluded that Washington second-degree assault does not qualify as a “crime of violence” under the enumerated clause of USSG 4B1.2. For the same reason, the panel held, 2nd-degree murder under Washington Code 9A.32.050 is overbroad because the statute covers felony murder. The panel found the statute indivisible, and therefore concluded 2nd-degree murder is not a “crime of violence” under the enumerated clause of USSG 4B1.2.

The 8th Circuit ruled in Mora-Higuera v, United States that a defendant’s 2255 motion, asserting a due process right to be sentenced without reference to the residual clause of USSG 4B1.2(a)(2) under the mandatory guidelines, was not dictated by Johnson v. United States, because it is “reasonably debatable whether Johnson’s holding regarding the ACCA extends to the former mandatory guidelines.” Thus, the defendant was not able to challenge his mandatory Guidelines career offender sentence on the grounds one of the prior crimes of violence was invalidated by Johnson.

vaguenes160516Finally, the 10th Circuit agreed in United States v. Pullen that “the Supreme Court has never recognized a void for vagueness challenge to the Guidelines and so Johnson neither creates a new rule applicable to the Guidelines nor dictates that any provision of the Guidelines is subject to a void for vagueness challenge.”

United States v. Bong, 2019 U.S. App. LEXIS 2798 (10th Cir. Jan. 28, 2019)

United States v. Thrower, 2019 U.S. App. LEXIS 3145 (2nd Cir. Jan. 31, 2019)

United States v. Vederoff, 2019 U.S. App. LEXIS 3314 (9th Cir., Feb. 1, 2019)

Mora-Higuera v. United States, 2019 U.S. App. LEXIS 3139 (8th Cir. Jan 31, 2019)

United States v. Pullen, 2019 U.S. App. LEXIS 2937 (10th Cir. Jan. 29, 2019)

– Thomas L. Root

Fair Sentencing Act Retroactivity Benefits Are Broad – Update for January 31, 2019

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FAIR SENTENCING ACT RETROACTIVITY HELPING CAREER OFFENDERS, TOO

Section 404 of the First Step Act, which authorizes the retroactive application of the 2010 Fair Sentencing Act to people sentenced for crack cocaine offenses before its enactment, is already opening the jailhouse door for some inmates.

... had nothing on crack hysteria.
… had nothing on crack hysteria.

Prior to 2010, crack cocaine was treated by the law with a level of hysteria that made “reefer madness” seem rational. A defendant caught with 10 grams of crack was treated as though he had a kilo of powder cocaine. The Fair Sentencing Act, passed in 2010, reduced this 100:1 ratio of crack to powder to 18:1, a ratio still untethered to reality but the best the bill’s sponsors could negotiate with some Senate holdouts. Still, the Act meant that a defendant had to be caught with 28 grams for a mandatory minimum five years in prison rather than a mere 5 grams.

The other concession the bill’s sponsors had to make in order to ensure the measure’s passage was to agree that the Act would be prospective only, that is, apply only to people sentenced after the measure was enacted. It took eight years for another bill, this one the First Step Act, to do what should have been done in 2010, and that is to treat the guy sentenced on August 1, 2010, the same as the guy sentenced two days later.

The Sentencing Commission has lowered the drug guidelines twice since 2010, and each time made the change retroactive. However, retroactivity did not help guys who had mandatory minimum sentences under 21 USC § 841(b)(1) that would no longer be as onerous if the Act had passed. Likewise, a lot of defendants had had two qualifying prior cases, and were thus considered career offenders under the Guidelines. Career offenders have been deemed by the courts to not have been sentenced under the drug quantity guidelines, and thus the Sentencing Commission’s changes to those guidelines did not benefit them.

But now, a weird effect of the retroactive Fair Sentencing Act is giving hope to guys who sentenced as Guidelines career offenders in crack cases.

Logan's going to the street...
Logan’s going to the street…

Logan Tucker was convicted in 2001 for a crack offense. His original 262-month sentence was driven not by a statutory mandatory minimum, but rather by the Guidelines career-offender provision. Although Logan’s sentence for a crack offense was driven by the Guidelines rather than a statutory mandatory minimum provision, he was not previously eligible for a 2-level reduced sentence due to retroactive Guideline changes because of his career offender status.

But last week, Logan got his break. His sentencing judge ruled that Logan was originally sentenced for a crack offense, and the Fair Sentencing Act lowered the statutory maximum he would have faced. The career offender guidelines, strangely enough, are set under USSG § 4B1.1 by the statutory maximum sentence a defendant faces. Logan’s new lower statutory maximum effectively lowed his career offender guideline.

Logan’s judge imposed a reduced sentence of 188 months, the low end of the new guidelines range, and let him walk out of the courtroom a free man (or as free as supervised release lets one be). Notably, the government in this case conceded that the First Step Act authorized the reduced sentence (although, being prosecutors to the end, the AUSAs urged the court to exercise its discretion not to reduce Logan’s original sentence).

Order, United States v. Logan, Case No. 3:00-cr-00246 (S.D. Iowa, Jan. 23)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Supreme Court, Weary of ACCA, Ducks Trio of Cases – Update for October 22, 2018

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SUPREME COURT REFUSES CHANCE TO APPLY JOHNSON TO MANDATORY GUIDELINES

Three years ago, the Supreme Court held in Johnson v. United States that the “residual clause” of the Armed Career Criminal Act definition of a crime of violence, which included within its sweep any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another,” was unconstitutionally vague. Because the ACCA’s definition was identical to the Guidelines’ “career offender” definition, a lot of people thought that it was only a matter of time before “career offender” sentences would be cut as well.

thilo181022But two years after Johnson, the Supreme Court ruled in Beckles v. United States that because the Guidelines are merely advisory, a constitutional vagueness challenge to the career offender guidelines would not work. But the Guidelines have only been advisory since 2005, when United States v. Booker held that mandatory sentencing guidelines were unconstitutional. What the Beckles court did not answer was the question of whether someone whose “career offender” sentence was imposed under the pre-2005 mandatory Guidelines could successfully make a Johnson challenge. Nevertheless, Beckles seemed to presage a holding that would invalidate mandatory Guideline “career offender” sentences under Johnson as soon as the proper case presented itself to the Supremes.

Thilo Brown, as well as two other mandatory Guidelines “career offenders,” had such cases, and their petitions for writs of certiorari arrived at the high court last summer while the Justices were gone fishin’. The three cases would provide the Court a chance to answer the Johnson mandatory “career offender” question everyone thought the Justices had all but begged to have presented.

Apparently not. Last week, the Court denied certiorari to all three.

The decision not to review Thilo’s case drew a dissent from Justice Sonia Sotomayor, rare for a cert denial. She said, “This important question, which has generated divergence among the lower courts, calls out for an answer… Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear.”

Brown v. United States, Case 17-9276 (Supreme Court, Oct. 15, 2018)

– Thomas L. Root

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Pay Your Money and Take Your Chance on Rule 11(c)(1)(C) Sentence – Update for October 3, 2018

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VACATED STATE CONVICTION DOES NOT LEAD TO LOWER RULE 11(c)(1)(C) SENTENCE

Brian Hoskins, a man with two prior felony drug convictions, made a deal under Federal Rule of Criminal Procedure 11(c)(1)(C) to plead to 112 months on a federal drug trafficking case. A so-called (c)(1)(C) plea specifies a precise sentence which the court may accept or reject, but not change. The (c)(1)(C) deal brought Brian’s sentence in way below what his Sentencing Guidelines “career offender” status would have gotten him.

jailfree140410But after sentencing, Brian was able to get his Vermont drug felony conviction – one of the two prior convictions that qualified him as a “career offender” – set aside because his state lawyer had screwed up the plea. All of a sudden, he no longer qualified as a career offender, dramatically lowering his sentencing range. His  112-month plea no longer looked like such a good deal.

Brian filed a 28 USC 2255 motion, arguing that his Rule 11(c)(1)(C) plea should be set aside. The district court agreed, holding that his “now-vacated state conviction clearly led to a significant enhancement of his sentence.” The district judge cut Brian’s sentence to 86 months, which Brian has now completed.

Not so fast, Brian. Last week, the 2nd Circuit upheld a government appeal of the 2255 grant. Noting that a non-constitutional error – like the state court conviction that had now gone away – can be recognized on a 2255 motion only if “the claimed error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice.’”

Here, the Circuit said, there was no miscarriage. Brian’s 112-month deal fell within his non-career offender sentencing range of 100-125 months. What’s more, the 2nd said, “Sec. 2255 does not encompass all claimed errors in conviction and sentencing.” Id. at 185. Rather, those instances where an error in conviction or sentencing rise to the level to be a cognizable basis for a collateral attack are reserved for when the “error of fact or law is of the fundamental character that renders the entire proceeding irregular and invalid… A “later development” that “did not affect the lawfulness of the judgment itself—then or now,” is not enough to vacate the sentence imposed.

The appellate court said Brian’s plea deal agreed he was a career offender, but applied a sentencing range well below it. The deal also let Brian avoid a superseding indictment with enhanced mandatory minimum sentence of ten years. “Together, these circumstances show that, even with a career offender enhancement applied to calculate Hoskins’s Guidelines range at 155 to 181 months, in securing agreement to a sentence of 112 months, Hoskins left the bargaining table with a deal that secured him real benefit, hardly indicating a a miscarriage of justice.”

welcomeback181003Second, because the Guidelines are advisory, the district court necessarily had to make an individualized determination that the 112-month sentence was right for Brian. The district court obviously did so, the 2nd Circuit said, and the fact the 112-month deal was in the middle of his non-career offender range made it clear Brian’s sentence was no miscarriage of justice.

The 2255 grant was reversed, and Brian will have to return to prison.

United States v. Hoskins, Case No. 17-70-cr (2nd Cir. Sept. 26, 2018)

– Thomas L. Root

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