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

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

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

Four decisions of note last week:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

Orgeterix Mortuus Est… But I Had Help – Update for December 17, 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.

4th CIRCUIT EXTENDS BURRAGE HOLDING TO DRUG GUIDELINES

Several years ago… OK, several decades ago, I studied Latin in high school under the watchful eye of my sainted Latin teacher, Emily Bernges. When she had us reading Caesar’s Commentaries on the Gallic War, my fellow students and I were taken by Julius’s matter-of-fact report on the denouement of Orgeterix, the Helvetian (think “Swiss”) aristocrat. Orgeterix conspired to take over France, but was hauled off to trial for his nefarious plans, only to be sprung later by 10,000 of his closest friends. After being released, he mysteriously departed this mortal coil. Suicide? Murder? Death by misadventure? No one knows.

orgeterix201217Julius Caesar covered it in the Commentaries with a terse observation: Orgeterix mortuus est. That is to say, “Orgeterix died.”

The drug penalty statute, 21 USC § 841(b), specifies a sentencing enhancement when “death or serious bodily injury results from the use of” the drugs distributed by a defendant. The enhancement is steep: subsection (1)(C), for example, contains no mandatory minimum for distributing small amounts of drug, but “if death or serious bodily injury results from the use of such substance” the minimum is 20 years.

Of course, life is seldom neat, and neither is death. If a defendant hands Abbie Abuser a gram of fentanyl, for example (500 time the lethal dose), and she promptly swallows it all, the grounds for the enhancement are pretty clear. But usually, the victim’s blood turns out to be a toxic waste dump of multiple substances, only one of which came from the defendant. In that case, did “death or serious bodily injury result” from the defendant’s drugs so as to justify the enhanced sentence?

In 2014, the Supreme Court said “no” in Burrage v. United States. Instead, the Court said, when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, that defendant cannot be liable for penalty enhancement under 21 USC 841(b)(1) unless such use is a “but-for” cause of the death or injury. Like Orgeterix, the victim mortuus est, but if the mortuus would not have happened but for the defendant’s drugs, no enhancement is appropriate.

sauce170307Burrage settled the issue for the statute. But the sentencing guidelines contain a similar enhancement. We know from Beckles v. United States that it would be a mistake to assume that what’s sauce for the statutory goose is likewise sauce for the Guidelines gander. That is, just because a decision modifies how a statute is applied does not mean that the decision will govern how the Guidelines are interpreted.

Bill Young was convicted of a drug trafficking offense. Because someone he sold drugs to died of an overdose, he received a Guidelines 2D1.1(a)(1) enhancement because death resulted from drugs he sold, setting his Guidelines Base Offense Level at 43.

Burrage only dealt with the 841(b) statute, not the Guidelines. Nevertheless, Bill filed a 2241 habeas corpus action, arguing Burrage was retroactive and the case applied to the Guidelines as well as 21 USC 841(b)(1). He claimed the victim mortuus est, and non one could say his product was the independent cause of death. Last week, the 4th Circuit agreed that Burrage applies to the Guidelines, and ordered the 2241 petition heard.

death200330“For starters,” the Court said, “the language of USSG 2D1.1 significantly parallels the language of 841(b)(1) that Burrage interpreted and that contains the statutory penalty for Young’s charged offense… Because of that parallel language, other courts have recognized that the Guidelines and statute mirror each other in several key respects… We see no reason to treat the Guidelines differently from the statute, especially since they were mandatory when applied to Young.”

Bill was able to take advantage of the 4th Circuit’s Wheeler decision, which permitted him to use a 2241 petition to claim actual innocence of a sentence, not just of a conviction.

Young v Antonelli, Case No 19-7176, 2020 U.S. App. LEXIS 38662 (4th Cir. Dec. 10, 2020)

– Thomas L. Root

One Lost, One Still in Certiorari Limbo – Update for March 5, 2019

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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.

LAST WEEK’S SCORE IS 0-1-1 ON SCOTUS CERTIORARI

Two Supreme Court petitions for certiorari (which is how parties get the Court to take their cases for review) came up last week, leaving our score 0-1-1.

jenga190305The petition in United States v. Rivera–Ruperto, important to people with stacked 924(c) sentences, who were left behind by the First Step Act’s nonretroactivity, asked whether 160 years for a defendant who carried a gun to multiple government-staged drug buys could get 130 years’ worth of stacked 924(c) sentences complied with the 8th Amendment ban on cruel and unusual punishments. Despite a lot of interest in the criminal justice community that this argument be addressed (and the 1st Circuit’s remarkable en banc opinion asking SCOTUS to take up the issue), the Supremes denied certiorari last week without further comment.

Meanwhile, the government’s request for certiorari in United States v. Wheeler was relisted a second time, and yesterday appeared to be relisted yet again. As noted last week, Wheeler asks whether a prisoner whose 2255 motion challenging a statutory minimum was denied based on current circuit precedent may later seek habeas relief in a 2241 petition (allowed by the 2255(e) “escape clause”) on the ground that the circuit’s interpretation of the statutory minimum has changed. A relist does not mean that cert will be granted, but it increases the odds.

Beneath the surface in Wheeler there is percolating a mootness battle. The 4th Circuit refused to stay its decision in the case, instead issuing the mandate – which is the green light for the district court to apply its holding – nine months ago. Last week, the district court got around to resentencing defendant Gerald Wheeler, and reduced his sentence to time served. Gerry walked out the door a free man, having had whopping eight months cut off his 120-month sentence.

mootness190305In an inversion of what usually goes on at the Supreme Court – a defendant begs to be heard while the Dept. of Justice Solicitor General’s office argues the case is unworthy of review – the government filed a letter with SCOTUS last week arguing that “the grant of habeas relief to shorten [Gerald’s] term of imprisonment means that this case ‘continue[s] to present a live controversy regarding the permissibility of such relief.’”  Gerry’s lawyers, showing their irritation at the government’s conduct in the case, shot back that the Supremes should take a hard pass on this one:

The district court entered its written judgment on March 1, 2019, and Mr. Wheeler has filed a notice of appeal to challenge one aspect of the district court’s resentencing decision. During the course of those appeal proceedings, the government will have the opportunity to ask the en banc Fourth Circuit to reverse the panel decision… Given that the government recently—in the middle of this case—changed a two- decades-old position regarding its interpretation of § 2241, the opportunity for additional percolation in the courts of appeals would be beneficial for this Court’s ultimate review.

Now one might wonder why Gerry, now a free man (to the extent that anyone on supervised release is truly free) would have found anything to appeal in a “time served” sentence. No one involved in the case has Skyped me to explain this, but I suspect his lawyers, whose primary duty to their client was to get him out of prison, filed the notice of appeal in order to be able to do exactly what they have done: to argue that because the case is headed back to the 4th Circuit, the Supreme Court does not need to take it up at this time.

The Supreme Court neither granted nor denied certiorari on the case yesterday, suggesting yet another realist. The Court undoubtedly wanted to digest the dueling letters it received at the end of last week.

lovelawyerB170811My selfish view is that I would like the Supreme Court to settle the issue on the 2255(e) “escape clause,” going with the ten circuits that recognize the legitimate use of a 28 USC 2241 petition in cases like Gerald’s. But Gerald’s lawyers – the Federal Public Defender in the Western District of North Carolina – are doing some first-rate lawyering for their client. As a result, he awoke last Saturday in his own bed for the first time in almost a decade.

That’s what good criminal defense lawyering is all about.

Sentencing Law and Policy, After swift cert denial in Rivera-Ruperto, should I just give up hoping for an improved Eighth Amendment to check extreme non-capital sentences? (Feb. 25)

United States v. Wheeler, Case No. 18-420 (Sup.Ct.) petition for certiorari pending)

– Thomas L. Root

4th Circuit Denies Government Rehearing, May Force SCOTUS Review on 2241 – Update for June 18, 2018

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

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GOVERNMENT DENIED REHEARING ON 4TH CIRCUIT WHEELER CASE

We reported last April that in United States v. Wheeler, the 4th Circuit had reversed years of enforcing a policy of denying collateral review to people who improperly received higher sentences due to prior convictions, in a decision that defined when the 28 USC 2255(e) “savings clause” would let someone file a 28 USC 2241 habeas corpus action.

savings180618Gerald Wheeler had gotten a higher sentence because of a prior North Carolina drug felony that years later was ruled in United States v. Simmons to not be a felony. But Simmons’ retroactivity came too late for Jerry, whose 2255 motion had already been denied. He filed a 2241 motion, which was denied by the district court because he could only show he was actually innocent of the sentence, not of the underlying conviction.

Whether the 2255(e) savings clause applies to sentences as well as to convictions was left hanging in the 2016 United States v. Surratt case, which was dismissed on rehearing in the 4th Circuit when Mr. Surratt got a commutation from President Obama. After Mr. Wheeler won, the government requested rehearing en banc. Such requests from the government are rare and are usually granted by appeals courts. But last week, the 4th Circuit denied rehearing, making Wheeler binding precedent.

The 10th and 11th Circuits have held that a 2241 is never available to correct a change in the law. But seven other circuits permit a 2241 under the “savings clause” where a change in the law makes a defendant actually innocent of the underlying offense. Now, three circuits – the 4th, 6th and 7th – even permit a sentencing-based claim to proceed on 2241 via the saving clause.

wheelin180618Two 4th Circuit judges filed concurrences on the rehearing denial. One said that to deny Wheeler the right to test the legality of his sentence would be a miscarriage of justice. The other blasted the decision as defeat the Antiterrorism and Effective Death Penalty Act by letting inmates endlessly relitigate, saying “the issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.”

Supreme Court review of Wheeler might delay some inmates who can use the decision right away, but a review of the circuit split on proper use of the “savings clause” is long overdue. Professor Doug Berman of Ohio State University law school predicted in his sentencing blog last week that “this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, ‘Hey, I was wrong’. But I don’t know that I’ll ever admit that, but I’ll find some kind of an excuse for why my SCOTUS prediction was off.”

Order, United States v. Wheeler (4th Cir., June 11, 2018)

Sentencing Law and Policy, Spotlighting lower-court divides over AEDPA’s savings clause and consideration of sentencing errors (June 12, 2018)

– Thomas L. Root

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