Tag Archives: rule 11

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

Leave a comment

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

Don’t Listen to the Judge – Update for September 17, 2020

Leave a comment

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

SHUT UP, YOUR HONOR

You’d think that when a federal judge tells you that a plea offer stinks, you could take that to the bank.

shutup200917That didn’t happen for Seneca Harrison. After he was charged with an 18 U.S.C. § 922(g) felon-in-possession, the government offered him a 70-87 month plea deal. At Seneca’s change of plea hearing, the judge – upon hearing the deal – threw the Assistant United States Attorney out of the courtroom, and then told Seneca the federal (as opposed to the state) system “sucks” and is “really harsh.” The judge advised Seneca he’d get a better deal going to trial.

So Seneca did what the judge suggested… and he got hammered. Because going to trial took away his Guidelines acceptance-of-responsibility points, his sentencing range increased. He was sentenced to 92 months.

Last week, the 10th Circuit vacated the sentence and sent the case to a different judge for resentencing. Everyone agreed that the judge’s comments on the plea violated F.R.Crim.P. 11(c)(1). And Seneca was prejudiced by it, because there was a reasonable probability he would have taken the government deal if the court had kept its mouth shut. To be sure, the district court’s comments were “inappropriate. Commenting on the sentencing practices of another judge and making disparaging remarks about the federal system harms the public reputation of judicial proceedings.”

United States v. Harrison, 2020 U.S. App. LEXIS 28621 (10th Cir Sept. 10, 2020)

– Thomas L. Root

Hughes Decision Nets Sentence Reductions for More Inmates – Update for July 24, 2018

Leave a comment

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

LISAStatHeader2small

HUGHES DECISION BEGINS WORKING FOR 3582(c)(2) INMATES

The Supreme Court’s decision in Hughes v. United States last month is already getting sentence reductions for F.R.Crim.P. 11(c)(1)(C) plea agreement holders.

In a Rule 11(c)(1)(C), or “Type-C,” plea agreement, the defendant and Government agree on a particular sentence. The court may either accept the agreement, which requires it to impose that agreed-upon sentence, or reject the agreement in its entirety. What the court may not do is accept the agreement but deviate from the sentence. In standard, or Rule 11(c)(1)(A), plea agreements, the sentence may be recommended by the parties, but a determination of what sentence to impose is the prerogative of the court.

reduction180723The U.S. Sentencing Commission has reduced the drug quantity tables three times since 2007. In each case, the Commission made the reduction retroactive under Guideline 1B1.10. This meant that a 2006 defendant whose offense level was set at a Level 36 for the quantity of marijuana involved in her offense, and sentenced within the corresponding sentencing range of 188-235 months, could have applied for a reduction of sentence under 18 USC 3582(c)(2) based on the new, lower range for the same quantity of marijuana adopted in 2007.  She would have then had a range of 151-188 months. By 2015, the accumulated reductions would have set her range at 121-151 months. An initial sentence of 188 months may have dropped by a third to as low as 121 months.

Before Hughes, a defendant sentenced under a Rule 11(c)(1)(C) pies could not qualify for a reduction unless she could show that her sentence was “based on the Guidelines.” Proving that the Guidelines were the basis for a Type-C plea was a pretty tall order, because most of the time, the issue never arose. The sentence was pure negotiation, and the courts usually signed off without much comment.

In Hughes, the Supreme Court held that a sentence imposed pursuant to a Rule 11(c)(1)(C), or “Type-C” plea agreement, is typically based on the sentencing guideline range whether it says so or not because the district court almost always must first evaluate the stipulated sentence in light of the defendant’s sentencing guideline range. A sentence imposed pursuant to a Type–C agreement is based on the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.

pleadealb161116Tremell Armsted had a Type-C plea agreement, and was denied an 18 USC 3582(c)(2) sentence reduction by the 5th Circuit last year. He filed for Supreme Court review, and his petition was held pending Hughes. After that decision, the Supreme Court sent him back to the 5th Circuit.

The Circuit agreed that Tremell entered into a “Type- C” agreement “in which the parties agreed that the appropriate term of imprisonment was 180 months. At the sentencing hearing, the district court referred to the applicable guideline range that had been calculated by the probation officer and noted that it was lower than the stipulated sentence of 180 months. We conclude that Armstead’s sentence was ‘based on his guideline range because it was part of the framework the court relied upon in imposing his sentence.”

Tremell’s 3582(c)(2) motion was sent back to the district court for a decision on the merits.

United States v. Armsted, Case No. 17-30439 (5th Cir., July 19, 2018)

– Thomas L. Root

LISAStatHeader2small

You Pay Your Money and You Take Your Chance – Update for May 2, 2017

Leave a comment

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

LISAStatHeader2small
BUYER’S REMORSE

With 97% of federal defendants entering guilty pleas, you’d think that law students aspiring to federal criminal defense work (that is, if any law student actually selects that as a career option) would take classes in plea negotiation even before studying evidence, criminal procedure or appellate advocacy.

pasdedeux170502To be sure, plea agreement negotiation is an art form, sort of akin to detailed choreography that has great implications for defendants, implications often never fully appreciated until much later. The change-of-plea hearing itself is a pas-de-deux for defendant and judge, with almost every question being scripted by Rule 11(b) of the Federal Rules of Criminal Procedure – and almost every answer being a trap for the unwary.

It’s little wonder the Supreme Court has held that the 6th Amendment’s right to effective legal counsel extends to negotiating and signing the plea agreement.

Gilbert Spiller was a man without a lot of choices. He was busted in Chicago for selling 121 grams of crack to a police informant, and then compounding his miscalculation by later selling the same guy a loaded .40 caliber pistol so the buyer – a convicted felon – could use it to protect his own drug trafficking operation. Gil was sort of a poster boy for what’s wrong with the Windy City.

Gil, a man with three prior drug felonies, was pretty much in a corner. The federal drug trafficking statute – 21 USC 841 – is a spaghetti bowl of “if-thens.” If the amount of drugs sold exceed x, then the minimum sentence becomes y. If the defendant has x number of prior drug felonies, then the minimum sentence is y, but if the number of prior felonies is x+1, then the minimum sentence is 2y. If death or serious injury resulted from the drug sales, then the minimum sentence is z. In Gil’s case, the amount of drugs he sold would have given him a mandatory minimum sentence of five years, but his prior felonies bumped it to double that.

pleading170502When the government intends to enhance a 21 USC 841 sentence, it has to provide a notice complying with 21 USC 851. In defendant parlance, someone receiving such an enhanced sentence has been “851’d.” Gil got 851’d right away, even before the government’s plea offer arrived on his lawyer’s email.

The government proposed that Gil would plead to a drug distribution count, and admit that the conduct underlying the remaining counts was relevant for sentencing purposes. He also had to stipulate to the government’s Guidelines calculation, including a Guidelines “career offender” enhancement that would send the sentencing range into the stratosphere.

Gil’s defense attorney was puzzled by the offer. Gil would be giving up his right to appeal or argue Guidelines enhancements at sentencing, and for what? We see this in many plea agreements: the defendant give up rights in exchange for vapor, getting nothing that he could not have gotten simply by pleading guilty without the agreement (called a “blind plea”). After all, a defendant does not have to have an agreement in order to plead guilty, and sometimes, no plea agreement might be a wise idea.

Gil clearly wondered what was in the deal for him, as did his attorney. She wrote back:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

In an uncharacteristic flash of candor, the Assistant U.S. Attorney responded:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility.

forme170502Gil rejected the government’s proposed plea agreement and instead entered a blind plea, pleading guilty to all three counts and reserving his right to argue his sentence and appeal. His sentencing range was 262-327 months. At sentencing, his lawyer pointed to his troubled upbringing, asking for 120 months. The court sentenced Gil to 240 months.

Once ensconced in prison, Gil became afflicted with buyer’s remorse. He filed a 28 USC 2255 motion, arguing his lawyer had been constitutionally ineffective by counseling him to execute a blind plea rather than taking the government’s proposed plea agreement. The district court denied the motion.

Last week, the 7th Circuit upheld the denial. To win, Gil had to show his lawyer’s performance fell below an objective standard of reasonableness, and that there was a reasonable chance that, but for those errors, his sentence would have been different.

The Circuit said that a reasonably competent lawyer would have tried to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing him to plead guilty. That, the Court said, was just what Gil’s lawyer did. She discussed the proposed plea agreement with him and conveyed Gil’s questions (and hers) to the government. She concluded that Gil would be better off rejecting the offer and pleading blindly.

remorse170502In fact, she went one better that most attorneys. She drafted an 11-page plea declaration illustrating the understanding of the relevant facts and law underlying the case that she and Gil had reached, which she had Gil sign. In the document, which was filed with the district court, Gil acknowledged he had read the indictment and the document he was signing, and had gone over the whole thing with his attorney. (This, in our experience, is an unusual but prudent practice: it both ensures the defendant knows what is happening and protects the lawyer from “buyer’s remorse” proceedings such as Gil’s 2255 motion).

Gil admitted in his 2255 motion that his attorney believed it was worth it to reserve his right to challenge the government’s Guidelines calculation — a right he would have sacrificed by signing the plea agreement — and believed she could get him a “better sentence.” The Court said her decision “sounds in strategy rather than in emotion, and a strategic decision, even if clearly wrong in retrospect, cannot sup-port a claim that counsel’s conduct was deficient.”

endof170502The Circuit observed that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re-construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” This is especially true in the plea-bargaining context, the Court said, citing “the many uncertain-ties surrounding the difficult decision of whether to plead guilty.”

The 7th concluded that the district court had “a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.”

Spiller v. United States, Case No. 15-2889 (7th Cir., Apr. 28, 2017)

– Thomas L. Root

LISAStatHeader2small