Thursday, September 15, 2016

What Exactly Does "Conviction" mean?

 The opinion in United States v. Canelas-Amador reads like a suspense novel with the first paragraph eliciting the intrigue of the reader.  This is merely a summary of the opinion but you are encouraged to read it (United States v. Wilmer Canelas-Amador, No.15-6035) on your own. 

Several years ago, Wilmer Canelas-Amador was arrested in Tennessee state court for felony aggravated assault and a few misdemeanors.   A “Waiver of Trial by Jury and Acceptance of Plea of Guilty” was an executed form found in the court record. However, no findings of fact or hearing transcripts were available.  Before his formal state sentencing, Mr. Canelas-Amador was deported to Honduras by the federal immigration authorities.   No one informed the Tennessee state judicial system that he had been deported and a capias was ordered due to his failure to sit for a presentence interview.   Mr. Canelas-Amador reentered the United States shortly thereafter and was rearrested and charged in federal court in Texas. He pled guilty to illegal reentry and received one year of imprisonment. 

In 2015, he was arrested in Tennessee and again charged in federal court with illegal reentry.  After a guilty plea, he received a sentence of 57 months’ imprisonment due to a guideline range calculation of 57-81 months.  The district judge considered the “Waiver of Trial by Jury and Acceptance of Plea of Guilty” as proof of conviction for a felony crime of violence.  This designation enhanced his guideline calculation by sixteen levels.  The district judge relied upon opinions in other circuits because USSG § 2L1.2(b)(1)(A)(ii) did not define ‘conviction,’ and this issue had yet to be considered by the Sixth Circuit. 

On appeal, the Sixth Circuit was presented with one question.  “Was the district court right that the state court order accepting the guilty plea was a conviction for purposes of § 2L1.2(b)(1)(A)(ii)?”  The short answer is no. 

The government encouraged the Sixth Circuit to rely on the definition of ‘conviction’ found in USSG § 4A1.2(a)(4) rather than 8 U.S.C. § 1101(a)(48)(A).  The government reasoned that it would be ‘odd to define a conviction one way for the computation of criminal history - §4A1.2(a)(4) – and another way for computation of the impact criminal history has on the offense level - §2L1.2.”    The Sixth Circuit found a circuit split on the question.  The Fourth, Fifth, Tenth and Eleventh Circuits rely on §1101; whereas the First, Second and Ninth depend on the guideline language found in §4A1.2(a)(4). 

By applying the rule of lenity, the Sixth Circuit held that the more restrictive definition in §1101(a)(48)(A) applies.   Therefore, Mr. Canelas-Amador was never convicted of aggravated assault by the Tennessee state court and his guideline range should have been significantly lower.  The case was reversed and remanded to district court for resentencing. 

This was an excellent win for the defense and it was spearheaded by our very own blog contributor, Laura Davis, Federal Defender Services of Eastern Tennessee. 

Tuesday, September 13, 2016

New? rule for withdrawing as counsel

A helpful case manager at the Sixth Circuit alerted me to 6th Cir. R. 12(c)(4)(D), regarding motions to withdraw as counsel. I do not have to file these very often, so am not sure when the notice requirement was added. Should the rare occasion arise that you need to withdraw, be sure to notify your client he has 14 days to respond to the motion, and note in your motion his current location. Your certificate of service, provided it has adequate information about your client, is adequate proof that you have served your client.

Tuesday, September 06, 2016

Twelve Minutes Sufficient Prep for Supervised Release Violation Hearing: Coleman

Last week, the Sixth Circuit decided United States v. Coleman, which held counsel was not constitutionally ineffective in accepting an in-court appointment on a supervised release violation, briefly reviewing the case, and then proceeding with the hearing. Defense counsel was appointed at the beginning of the hearing when the defendant expressed dissatisfaction with his current appointed counsel. The district court then briefing recessed, and defense counsel spent twelve minutes reviewing the case  before proceeding with the violation hearing.

When Court resumed, Mr. Coleman did not contest the violation. The district court offered to adjourn the hearing to allow Mr. Coleman additional time to prepare, but he advised the court that he wanted to get the hearing over with. The Sixth Circuit looked to its decision in Fuller v. Sherry, 405 F. App'x. 980 (6th Cir. 2010), which analyzed belated appointments under the United States v. Chronic, 466 U.S. 648 (1984), five-factor framework for ineffectiveness. The Court concludes, "Although we acknowledge that twelve minutes would ordinarily be a relatively short amount of time for an attorney to investigate and prepare for a revocation hearing, Coleman did not—and does not now—contest the charges against him."

Specifically, the Coleman Court acknowledged that additional time might have allowed for more extensive mitigation to be presented. But because newly appointed counsel did raise Mr. Coleman's substance abuse problem - the primary mitigation in his case - defense counsel did not "entirely" fail to put the case to adversarial testing. The Sixth Circuit, in affirming Mr. Coleman's sentence on the violation, also compared Mr. Coleman's case to cases in which it found ineffective assistance based on far more egregious facts. Ultimately, the presumption of prejudice was not applied in Coleman "given that Coleman’s revocation hearing presented his attorney with a relatively simple task for which extensive preparation would have been of questionable value."

Judge Clay dissented from the majority, writing "such circumstances cannot possibly satisfy the constitutional requirement that a defendant be afforded effective legal representation." In dissenting, Judge Clay wrote that prejudice in Mr. Coleman's case must be presumed, because no defense attorney could digest more than thirty pages of presentence investigation report and violation report, as well as consult with a client, in the time allotted. Applying Chronic, the dissent concluded that "no lawyer—not even the most experienced and competent criminal defense attorney—could provide the kind of assistance of counsel required by the Sixth Amendment in just twelve minutes"."

Mr. Coleman also argued his sentence was procedurally unreasonable, because he received a sentence above the Guideline range. The Sixth Circuit determined the colloquoy at the violation hearing was sufficient to support the variance.


Friday, August 26, 2016

Proffer Me This: Counsel is Not Ineffective for Approving Broad Proffer Agreement

In Fifer v. United States, the Sixth Circuit confirmed that proffer agreements can vary in scope and in the latitude they afford the Government in using the defendant's statements should he or she decide to take their case to trial.  The Court's decision also serves as a reminder that proffer meetings also present risks for the defendant and his or her counsel.

Upon his indictment for being a felon in possession of a firearm and possessing with intent to distribute approximately 13 grams of crack cocaine, Demarcus Fifer retained James Ball, who had previously represented him and with whom he had a personal relationship.   Fifer's criminal history was far from pristine.  This fact, along with the strength of the Government's case, convinced Ball to recommend that Fifer pursue a plea bargain and by cooperating in an effort to obtain a § 5K1.1 motion for a sentence below the then-mandatory Guidelines range.

As with any proffer, the Government presented Fifer and Ball with a two-page letter setting forth the terms of the proffer meeting.  Aside from reciting the language typical for a proffer agreement, the letter also stated that the Government could use Fifer's statement "to rebut any evidence, argument, or representations offered by or on [his] behalf...in the government's case-in-chief in connection with the trial and/or sentencing...."  After reviewing the letter with Ball, Fifer proceeded with the proffer meeting during which he admitted to possessing the firearm at issue and to possessing crack cocaine.

Before reaching plea deal with the Government, Fifer made the fateful decision to not change his plea and to take his case to trial.  At the same time, he fired Ball and requested new counsel, which the trial court subsequently appointed for him.

Although he did not testify, Fifer suggested through the cross-examination of one of the Government's witnesses that he did not possess the firearm or the drugs at issue.  The Government moved to admit Fifer's proffer statements, and the trial court overruled his objections to the same.  A jury subsequently convicted Fifer of both counts of the indictment, and the Court sentenced him as career offender to concurrent sentences on each count of 120 and 292 months, respectively.

After finding no success during his direct appeals, Fifer turned his ire to Ball, filing a §
 2255 motion to vacate his sentence for ineffective assistance of counsel.  The trial court subsequently overruled his motion.

In an unpublished decision, the Sixth Circuit affirmed the trial court's decision and found that Ball's representation of Fifer with respect to the proffer was not ineffective.  In reaching its decision, the Court rejected Fifer's argument that it was objectively unreasonable for Ball to recommend what he deemed to be an "unusually broad" waiver.  After finding that Ball understood the broad waiver provisions contained in the proffer letter, the Court also found that the provision was not so broad as to make it objectively unreasonable for Ball to have advised Fifer to agree to it as a condition of the proffer.  In examining the scope of the waiver, the Court found that it had upheld similarly broad waiver language in other proffer agreements.

This case serves as a reminder that the decision to recommend your client participate in a proffer meeting in anticipation of a plea agreement is fraught with risks for both the defendant and his or her counsel.  Perhaps Ball described it best by explaining it is "a little like Russian Roulette...."


Sunday, August 21, 2016

Johnson Is Retroactive For Career Offender Determination, But Still Must Wait For Beckles

The Sixth Circuit will authorize second or successive § 2255 petitions to address Johnson issues related to application of the career offender enhancement. In In re: Antonio D. Patrick, the Sixth Circuit found that Johnson announced a substantive change that applied retroactively and on collateral review—a holding permitting successive petitions.

The Government argued that the petition should not be permitted because Johnson is procedural. The Court rejected that argument as contrary to the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257, 1265 (2016) (“under this framework, the rule announced in Johnson is substantive.”). As explained in Welch, Johnson changed “the range of conduct or the class of persons” punishable under the ACCA—a substantive change. Under Pawlak, the Sixth Circuit found that the same reasoning applied to the career offender residual clause.

The Court also rejected the Government’s argument that Johnson must be procedural in regard to the Guidelines because the Guidelines themselves are procedural. Finding that sentencing courts lack discretion to forego reference to the Guidelines, the Court concluded: “that the Guidelines are not mandatory is a distinction without a difference.” In re Patrick (quoting Pawlak, 822 F.3d at 907).

In reaching this result, the Sixth Circuit joined the Second, Fourth, Fifth, Ninth, Tenth, and D.C. Circuits (though Judge Sutton previously asserted that the Fifth Circuit has rejected arguments akin to Patrick’s in In Re: Alford D. Embry). Significantly, consistent with In Re: Alford D. Embry (discussed in this blog’s July 29 post), the Court found that further consideration of Patrick’s petition must be held in abeyance pending the Supreme Court’s decision in Beckles v. U.S. (where the Supreme Court granted certiorari to review the Eleventh Circuit’s decision that Johnson is inapplicable to the Sentencing Guidelines). Hence, Patrick and similarly situated persons must watch for the Supreme Court decision in Beckles (the Government’s brief is currently due September 19, 2016).

Career Offender Clarifications

Adult convictions, even if committed and obtained before a defendant is eighteen, may be used when determining career offender status. In U.S. v. Doxey, the Sixth Circuit (in a published opinion) joined the Fourth and Tenth Circuits in finding that the plain language of Committee Note 1 to 4B1.2 requires that result.


The Sixth Circuit also confirmed that plain error review is required if a defendant fails to make a Johnson claim at sentencing. In Doxey’s case, he objected to the career offender enhancement because his two prior drug convictions involved a relatively insubstantial amount of drugs, but he did not contest his conviction for third-degree fleeing and eluding a police officer. The Court found no record evidence that the sentencing court relied on the flight conviction when applying the career offender enhancement. As such, the Court found no error.

Friday, July 29, 2016

J. Sutton: Wait for Beckles

In today's opinion in In Re: Alford D. Embry, Judge Sutton notes the differing opinions on whether Johnson v. United States, 135 S. Ct. 2551 (2015), applies to the Guidelines and whether it applies retroactively to the Guidelines. There is also some interesting discussion of when the statute of limitations for a 2255 on the issue would start to run: Johnson? Pawlak? Beckles?

Happy note: Making the argument that Johnson applies retroactively to the Guidelines meets the gatekeeping requirements for a second or successive 2255 petition. So people petitioning the Sixth for Johnson relief for Career Offender or 2K2.1 or suchlike will get remanded to the district court to litigate the issue.
CORRECTION: Upon closer reading - the gatekeeping question isn't even answered. The panel recognizes that the district court is also able to determine whether the gatekeeping requirements are met, and because of the restricted appeal rights, perhaps the district court is the best court to make gatekeeping decisions.

Frustrating note: Judge Sutton endorses waiting for the Supreme Court to rule in Beckles so that courts can have a definitive ruling on how Johnson applies in Guidelines cases. Furthermore, the best place to do that waiting is in district court.

Friday, July 22, 2016

The Gang's All Here - I see em in Court!

In cases where multiple defendants are allegedly members of gangs, the Government loves to bring in "expert" witnesses on how gangs operate, hierarchy, etc.  It makes for compelling testimony for the jury.  But sometimes the Government takes its witnesses a little too far.  In United States v. Rios, the Court held that a witness will not be a proper FRE Rule 702 witness where they mix fact with their expert testimony on the particular gang under indictment.  In Rios, one of the witnesses testified as the lead investigator, as well as an expert witness on gangs.  The witness not only informed the jury about how the particular gang worked, but peppered in his personal observations to support the expert testimony.  The Court found that " it is difficult to parse what came from Haglund the expert and what came from Haglund the investigator because there was no clear demarcation between his fact and expert testimony during the trial. This confusion regarding the capacity in which Haglund was testifying is independently problematic. The district court did not delineate Detective Haglund’s testimony—and Haglund himself never distinguished between his fact and expert testimony."  Therefore,  "even if Haglund’s testimony did not exceed the scope of Rule 702, his overall presentation as a dual fact-expert witness without further demarcation or explanation to the jury was in error."  Unfortunately for the defendants, however, the Court went on to find such error harmless under the circumstances of the case.