Thursday, April 30, 2009

Good News Re. Crack--Powder Disparity!

Yesterday, DOJ came out in support of eliminating the disparity between crack and powder cocaine sentences. Lanny Breuer, Assistant Attorney General, spoke before the Senate Subcommittee on Crime and Drugs.

Check out and for more info.

There are, it seems, four proposals in the House now to address cocaine sentencing. Nothing's in the Senate yet.

Lots of material here for sentencing memos. Buzz seems to be that changes will be retroactive, but you can't be too careful! Let's bring it up now!

When Are We Burros? IAC Claims and Petitions for Cert...

In United States v. Nichols, No. 05–6452 (6th Cir. Apr. 29, 2009), the Circuit en banc considered whether it is ineffective assistance of counsel to fail to preserve a "future change in the law" argument, one hoping that the Supreme Court will strike down existing law while a defendant’s case is still pending on direct appeal. The Court found that the petitioner couldn’t prevail on any IAC claim, so it avoided the broad constitutional question.

The petitioner and a co-defendant were sentenced in October 2002. The Apprendi opinion was out there, but otherwise, it was a pre-Blakely and Booker world. The petitioner got 405 months. Petitioner appealed. The panel affirmed. One day before the expiration of time to file for rehearing en banc, Blakely came down. Counsel didn’t ask for rehearing. Counsel did not petition for certiorari. The co-defendant’s counsel did petition for certiorari. Booker came down and the co-defendant got relief. Nine months were eventually knocked off co-defendant’s sentence—he got 396 months when resentenced.

The petitioner filed a pro se motion under 28 U.S.C. § 2255, claiming ineffective assistance of counsel. Petitioner claimed, among other things, that counsel had been ineffective for failing to raise an Apprendi argument or a Blakely argument later. The district court denied the motion. The petitioner got a certificate of appealability on the issue of whether counsel was ineffective when they failed to raise the issue of the petitioner’s sentence being enhanced based on facts not proved to the jury beyond a reasonable doubt. The panel hearing the appeal ruled for the petitioner. The government moved for rehearing en banc. The Court granted the motion. For the rehearing, the issue was a bit different: the petitioner argued that by failing to raise the Apprendi argument at sentencing, on direct appeal, and in a petition for certiorari, his counsel was ineffective.

Essentially, the Court concluded that the petitioner could not "link the two pieces of the ineffective-assistance standard—deficient performance and prejudice—on the same side of the demarcation: he cannot show prejudice at any point at which he had a right to counsel, and he cannot show a right to counsel (and, hence, deficient performance) at any point at which he could show prejudice." Basically, the Constitution does not entitle a defendant to the assistance of counsel for a discretionary appeal—like a petition for certiorari. So, the failure to file for such review cannot amount to constitutionally ineffective assistance.

The petitioner claimed prejudice because he was denied the benefit of Booker’s change in
the law—a resentencing under an advisory Guidelines scheme—which was a benefit he would have received had he petitioned for certiorari. Had he petitioned, his conviction would not have become final before the Supreme Court decided Booker. The Court found that the petitioner could show prejudice on this claim, so the question became that of whether his counsel’s failure to petition for certiorari amounted to constitutionally deficient performance.
The Court said no. The Constitution does not entitle a defendant to the assistance of counsel for the filing of a petition for certiorari. Counsel’s failure to file a petition does not amount to constitutionally ineffective assistance.

The Court also addressed the petitioner’s assertions based on Sixth Circuit Rules 101(a) and (g), which impose certain obligations on counsel (e.g., trial counsel must continue representation on appeal until they are specifically relieved by the Court and losing appellate counsel must petition for certiorari under certain circumstances). The petitioner’s claims for relief came under 28 U.S.C. § 2255, however, which calls for allegations of an error of constitutional magnitude, a sentence imposed outside the statutory limits, or an error of fact or law that was so fundamental as to render the proceedings invalid. The petitioner claimed a constitutional error. Absent a constitutional right, he had no claim. The procedural rules alone do not create constitutional rights or impose constitutional duties.

In terms of counsel’s failure to petition for rehearing en banc, the Court did not decide the issue because, "even if we were to assume that [petitioner’s] original appellate counsel performed deficiently by failing to move this court for rehearing . . . [petitioner] cannot show any resulting prejudice." At the time, the law was that the Federal Sentencing Guidelines did not violate the Sixth Amendment.

In short, the petitioner did not show that his counsel was constitutionally ineffective for failing to anticipate the changes that did come about in the law—counsel was not ineffective for failing to raise an Apprendi-based challenge at sentencing or on direct appeal, for failing to move the appellate court for reconsideration on a Blakely-based claim in post-appellate proceedings, or for failing to petition the High Court for certiorari under Booker.

Judge Moore dissented. She thought that the majority’s focus on the petitioner’s original counsel’s failure to petition for certiorari ignored the fact that there were actually several routes by which the petitioner could have had an appeal pending at the necessary time to obtain relief. Had counsel raised the Sixth Amendment argument at sentencing or on direct appeal, the petitioner likely would have known to raise the argument at a later date.

Judge Moore concludes that Apprendi and Blakely cast the constitutionality of the Federal Sentencing Guidelines into serious doubt, and that the petitioner’s sentence presented circumstances that were called into question by Apprendi and Blakely. Petitioner’s original counsel was therefore constitutionally ineffective for failing to preserve a Sixth Amendment challenge to the petitioner’s sentence.

Monday, April 20, 2009

Sentencing---Remand for Drug-Quantity Error

In United States v. White, No. 07–2404 (6th Cir. Apr. 16, 2009), the panel of Judges Kennedy, Martin, and Cole affirmed the defendant’s conviction, but remanded for resentencing. A jury found the defendant guilty of several cocaine and firearm offenses and the district court imposed a life sentence. The panel affirmed the district court’s discovery and evidentiary rulings and denied the defendant’s claims regarding prosecutorial misconduct.

The panel did, however, remand for resentencing. The defendant had argued that his base offense level should be 36 rather than 38 based on the amount of cocaine attributable to him. Under plain-error review, the panel found that the amount of drugs calculated was too high. The witness testimony on the issue was equivocal and a "drug quantity estimate must ‘err[] on the side of caution and likely underestimate[] the quantity of drugs actually attributable to the defendant.’" The panel decided to exercise its discretion to remand for plain error because the sentence was a life sentence. Had the base offense level been 36 (and total offense level 42), the range would have been 360 to life, a big difference for a 29-year-old defendant.

Wednesday, April 08, 2009

Every Man a King (or at least a Commentator)

I know that many of you have been itching to comment on the posts at this site, but have been frustrated by the lack of access. Well, remain silent no more! We have worked out our issues with the "comment" feature of the site and anyone should now be able to post comments to the articles on the blog. You will have to register with the site, but this shouldn't be too big a hassle and is mainly to keep out the robo-blog advertising. So now you have no excuse! Let us hear from you. In a truly representative democracy, every citizen has a voice in his/her government and its operation. Let us know how you feel! (If you run into problems that can't be resolved, e-mail me at Blog on!

Trajectory of Change? Power to Vary from All Guidelines Based on Policy Reasons?

In a very short, published opinion, the panel of Judges Keith, Merritt, and Gibbons remanded a crack case for resentencing. United States v. Vandewege, No. 07–2250 (6th Cir. Apr. 8, 2009). The gist of the case is that the sentencing court did not err in attributing 12.3 grams of crack found in the car to the defendant.

The highlights are in the dicta:

—The panel remanded for resentencing under 18 U.S.C. § 3582(c)(2). The panel noted "that the sentencing court instructed the Bureau of Prisons to attempt rehabilitation by treating and trying to cure the defendant’s drug addiction. This § 3582(c)(2) is part of the same subsection that allows courts to modify sentences for compelling reasons upon motion of the Bureau of Prisons. It may be that the Bureau of Prisons will have further information concerning rehabilitation worthy of consideration under § 3553."
—Are courts beginning to recognize a broader scope for § 3582(c)(2) resentencings?
—Case also should be remanded under United States v. Johnson, No. 07–2447 (6th Cir. Jan. 26, 2009) (remanding in light of Spears, in which Supreme Court reiterated sentencing courts’ ability to reject crack guideline on policy grounds).
—Majority recognizes sentencing courts may vary from guidelines in general on policy grounds. Closer review may apply if the variance is in a mine-run case. Judge Gibbons disagrees with this point in her concurrence. She believes that "[n]either Kimbrough nor Spears authorized district courts to categorically reject the policy judgments of the Sentencing Commission in areas outside of crack-cocaine offenses, as the majority suggests."

Sign of things to come?

Friday, April 03, 2009

Getting Funky—Gov Moves Ct to Dismiss Appeal

United States v. Funk, No. 05–3708 (6th Cir. Mar. 27, 2009).

On March 27, 2009, the Circuit granted the government’s unopposed motion to dismiss the appeal with prejudice. The panel opinion that was going to be considered en banc remains vacated.

What this move means for us. . . .

It’s worth checking out to look at the materials in this case. In a nutshell, on July 22, 2008, the panel of Judges Boggs, Batchelder, and Bell (W.D. Mich.) concluded that the variance in the case was unreasonable. Guidelines were 262 to 327 b/c of career-offender status. Dist. ct gave 150-month sentence. Panel said sentence unreasonable b/c not based on individual circumstances of case, but rather, on disagreement with career-offender guideline. Dismissal of the appeal based on the government’s motion seems good.

And it seems natural after Spears v. United States, 129 S. Ct. 840 (2009), and United States v. Johnson, 553 F.3d 990, 992 (6th Cir. 2009) (vacating sentence and remanding for resentencing because "Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this" and "because the district court sentenced [the defendant] without the benefit of Spears"—remand for resentencing necessary "to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines"). Maybe Funk is a sign that courts are recognizing that policy disagreements with the Guidelines will support a variance outside the arena of the crack guideline.