Tag Archives: FRCrimP 52

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

SCOTUS Says 5th Circuit Plainly Erred – Update for March 24, 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.

SUPREME COURT REBUKES 5TH CIRCUIT’S OUTLIER “PLAIN ERROR” STANDARD

Chuck Davis failed to complain when the district court made his federal sentence consecutive to a state sentence that was imposed for the same course of conduct. On appeal, however, he raised the issue under the “plain error” standard.

error161101“Plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure is a standard which is tougher to meet than the usual standard of review when a defendant has raised an objection below, but still one that can be met in some cases. It holds that an error that a defendant failed to raise in the trial court cannot be entertained on appeal unless it relates to a district court error that was plain (obvious), that affected the defendant’s substantial rights, and is such that it affects the integrity of the criminal justice system.

That’s a tough standard in and of itself, but the 5th Circuit has traditionally added its own gloss: if the error depended on facts that could have been raised in the trial court, it does not meet the standard. Under this cobbled-on addition to “plain error,” the 5th Circuit refused to entertain Chuck’s argument at all. The Circuit does not permit plain-error review where a defendant’s argument raised factual issues that could have been raised in the district court, because “questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.”

By contrast, almost every other Court of Appeals in America conducts plain-error review of unpreserved arguments, including unpreserved factual arguments.

Plain error in real life...
                              Plain error in real life…

Yesterday, the Supreme Court said that the 5th Circuit had to do so as well. Rule 52(b) holds that “a plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”  The Supreme Court said the “text of Rule 52(b) does not immunize factual errors from plain-error review. Our cases likewise do not purport to shield any category of errors from plain-error review… Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.”

Chuck’s case was remanded to the 5th Circuit for plain-error review.

Davis v. United States, Case No. 19-5421 (Supreme Court, Mar. 23, 2020)

– Thomas L. Root

“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 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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SPEAK NOW OR FOREVER HOLD YOUR PEACE

For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root

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A Trio of Significant Decisions – Update for February 27, 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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7th CIRCUIT SAYS KIDNAPPING NOT CRIME OF VIOLENCE

Antwon Jenkins was convicted of kidnapping and carrying a firearm during a crime of violence. He appealed, claiming the government had violated the plea agreement. He got 188 months for the kidnapping and another 120 months for the 18 USC 924(c) charge.

kidnap170227Before the appeal was decided, Johnson v. United States was decided by the Supreme Court, holding the residual clause of the Armed Career Criminal Act was unconstitutionally vague. Antwon amended his appeal to claim that the 924(c) conviction was void, because kidnapping could only be a crime of violence under the residual clause, making the conviction unconstitutional under Johnson.

Last Friday, the 7th Circuit agreed. It found that the first element of kidnapping – unlawfully seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away — does not necessarily require the use of force. The government argued that because the second element, holding for ransom or reward or otherwise, must be unlawful, it necessarily requires at a minimum the threat of physical force, but the Circuit disagreed. “Holding can be accomplished without physical force. For example, a perpetrator could lure his victim into a room and lock the victim inside against his or her will. This would satisfy the holding element of kidnapping under 18 USC § 1201(a) without using, threatening to use, or attempting to use physical force.”

The decision brings the 7th Circuit into harmony with other circuits that have held that similar crimes of false imprisonment and kidnapping by deception do not have physical force as an element.”

Antwon had not raised the issue in the trial court, but the 7th found that despite this, he had met the stringent FRCrimP 52(b) “plain error” standard for bringing it up for the first time on appeal. The Court said, “A 120‐month prison sentence for a nonexistent crime undermines the fairness of the judicial proceedings and cannot stand.”

United States v. Jenkins, Case No. 14-2898 (7th Cir., Feb. 24, 2017)
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WHO YOU GONNA BELIEVE?

For state prisoners who have exhausted their habeas corpus claims, 28 USC § 2254 permits filing the claims in federal court. Such cases are not easy to win, because federal courts will go with the state court’s decision unless it’s absolutely unreasonable. Even filing the cases on time is tough.

Mostly, 2254 does not affect federal prisoners, but a decision last Friday by the 11th Circuit delivers a stark message that federal inmate litigants should take to heart: if your lawyer drops your case without telling you, that’s one thing. But if he or she is just stupid – even really, really stupid – you’re bound by counsel’s mistakes.

Ernest Cadet, a Florida prisoner, was denied habeas corpus relief in state court. Under the convoluted rules that apply to 2254 motions, his one-year clock then started running for filing in federal court. It stopped with only 5 days left when he filed for review with the Florida Supreme Court.

But even an average lawyer should know how to count...
But even an average lawyer should know how to count…

While his Supreme Court petition was pending, Ernie hired Attorney Goodman, a guy who may have been a “good man” but was a lousy attorney. When the Supreme Court turned Ernie’s motion down, the inmate told Goodman they didn’t have much time to file a 2254. He said inmates in the law library warned him that he had to act fast. Goodwin replied he had read the statute, and Ernie had a full year, asking “who are you going to believe, the real lawyer or the jailhouse lawyer?”

The correct answer was “the jailhouse lawyer.” Goodwin filed the motion within the time he thought Ernie had, but it really about a year late. The federal district court threw out the petition as untimely. Ernie appealed.

The 11th Circuit upheld the dismissal. Inmates love to talk about “equitable tolling” as an end run around statutory deadlines, but the plain fact, the Circuit said, is that equitable tolling is an extraordinary remedy “limited to rare and exceptional circumstances and typically applied sparingly.” To warrant equitable tolling, a prisoner has to show he has been pursuing his rights diligently but that some extraordinary circumstance prevented timely filing.

lawyermistake170227The Court said attorney miscalculation of a filing deadline “is simply not sufficient to warrant equitable tolling, particularly in the post-conviction context where prisoners have no constitutional right to counsel.” The relevant distinction should be between attorney negligence – which is “constructively attributable to the client” – and “attorney misconduct that is not constructively attributable” to the client because counsel has abandoned the prisoner. A lawyer’s “near-total failure to communicate with petitioner or to respond to petitioner’s many inquiries and requests over a period of several years” might be abandonment. “Common sense,” Justice Alito concluded in a prior Supreme Court case, “dictates that a litigant cannot be held constructively responsible for the conduct of an attorney who is not operating as his agent in any meaningful sense of that word.”

The problem in this case is that Goodman never abandoned Ernie. He kept communicating, but arrogantly dismissed the possibility Ernie and his jailhouse lawyer friends might be right without doing as much as five minutes’ worth of research to see whether they might be.

Ernie “acted with reasonable diligence,” the Court said, “but the reasonable diligence and extraordinary circumstance requirements are not blended factors; they are separate elements, both of which must be met before there can be any equitable tolling.” Just because an agent (the lawyer) is grossly negligent does not mean he had abandoned his principal (the client).

Goodman was stupid, but he did not disappear on Ernie. The 11th held that “because the attorney is the prisoner’s agent, and under well-settled principles of agency law, the principal bears the risk of negligent conduct on the part of his agent… as a result, when a petitioner’s post-conviction attorney misses a filing deadline, the petitioner is bound by the oversight.

Cadet v. State of Florida DOC, Case No. 12-14518 (11th Cir., Feb. 24, 2017)
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CAN YOU HEAR ME NOW?

In a remarkable decision handed down by the 4th Circuit last Thursday, a deaf inmate’s claim that the BOP violated his 8th Amendment and 1st Amendment rights by denying him a sign-language interpreter and videophone link.

hearme170227The inmate complained that he was denied an interpreter to assist at medical appointments, and to enable him to take a class required because of the nature of his offense. He also said communications with the outside was limited to an antiquated TTY phone device, which he could only use when a BOP staff person trained in TTY was available to supervise. Often, he said, he was denied TTY access because of staff shortages or just because of arbitrary reasons, and he could never use the TTY on nights or weekends.

The Circuit reversed a district court decision that threw out all of the claims, saying the inmate did not have to show he had been harmed by the 8th Amendment deliberate indifference, just that there was a substantial risk of harm. As for the 1st Amendment claim, the Court swept away BOP claims of the security risks of a videophone, holding that the Bureau could easily monitor videophone calls just as it did TTY calls.

The BOP tried to derail the case by promising to provide interpreters in the future, stating that inmates would be provided “with a qualified interpreter… if necessary for effective communication during religious ceremonies or programs.” That was good enough for the district court, but the 4th swept the promises aside: “It is well established that a defendant’s voluntary cessation of a challenged practice moots an action only if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur,” the Court said. “Even if we ignore the equivocation inherent in the promise to provide interpreters ‘if necessary’ the statement amounts to little more than a ‘bald assertion’ of future compliance, which is insufficient to meet BOP’s burden.”

Heyer v. Bureau of Prisons, Case No. 15-6826 (4th Cir., Feb. 23, 2017)

– Thomas L. Root

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