Friday, December 29, 2006

Advance Notice Still Required Post-Booker for Upward Variance/Departure

Good news for the defense on an issue that has divided the circuits. Federal district courts in the Sixth Circuit must give advance notice to defendants under Rule 32(h), Fed. R. Crim. P., if they are considering imposing a sentence above the now advisory guideline range, even after the Supreme Court’s Booker decision which rendered the guidelines advisory rather than mandatory. This is not the case in all circuits. The 2-1 published decision can be found at: United States v. Collins, 469 F.3d 572 (6th Cir. 2006). Congratulations to Dennis G. Terez of the Federal Public Defenders office in Cleveland, Ohio, for making good law for the defense.

Thursday, December 07, 2006

Back to the (State) Drawing Board

Very interesting opinion issued today in US V. Morris, No. 05-2133 ( Dec. 7, 2006). The Sixth Circuit upheld the district court's dismissal of a federal drug and gun indictment, based on ineffective assistance of counsel at state level during early plea negotiations.

This was a Project Safe Neighborhoods case, with joint investigation/prosecution by feds and state law enforcement. The defendant initially was charged in state court, and received some sort of pre-preliminary hearing plea offer with a veiled threat of federal prosecution if the offer was not accepted. Both the state d.a. and defense attorney underestimated defendant's actual federal exposure, and conveyed the inaccurate federal guideline estimate to the defendant. The defendant only had short time with state defense attorney to accept or reject state's plea offer; he rejected it, then got sent to federal court.

The district court found that client received ineffective plea advice at state level and only way to remedy was to dismiss federal indictment.

There are more details and I recommend reading the opinion yourself.

Monday, December 04, 2006

En Banc Review of the Tolling of Supervised Release

Blog readers may recall a previous post about the district court practice of tolling the term of supervised release when a defendant will be deported after serving his term of imprisonment. The Sixth Circuit is the only circuit that has endorsed this tolling practice. At least three other circuits have rejected such tolling as exceeding statutory authority (for details, see previous post).

The Sixth Circuit recently granted a defendant’s request for rehearing en banc on the legality of tolling the term of supervised release while a defendant is deported, in United States v. Ossa-Gallegos, No. 05-5824. Mr. Ossa-Gallegos is represented by attorneys Ron Small and Jennifer Coffin at the Federal Public Defender in M.D. Tennessee, a district where many district judges do routinely toll the term of supervised release.

The order granted en banc review was entered in October. All supplemental briefs must be filed by December 13, 2006. Oral argument has not yet been scheduled.