Friday, December 16, 2011

Escape from a courtroom is not a "violent felony"

Is an escape from custody a violent offense?  The  courts continue to grapple with this issue, seemingly deciding on a case by case basis whether particular acts constitute aggravating enhancements for sentencing purposes.  In the latest case, United States v. Oaks, 11a0312p.06 , the Court remanded for resentencing (for a second time) based upon an Armed Career Criminal Act enhancement.  Oaks had a prior conviction for escape, based upon his escape from a courtroom.  Oaks had been in custody, and, during a court appearance, ran from the courtroom.  The Court held that this Tennessee state offense was not a violent felony for purposes of the ACCA.

Interestingly, the Court seized on suggestion, espoused by the Supreme Court in Chambers v. United States, 555 U.S. 122 (2009), that in analyzing whether an offense is a violent felony, the Court should make a statistical analysis of the offenses, to see how often the offense actually results in violence.  The Court noted that historical data showed that where an escape is from "nonsecure custody", such as the courtroom in question, injury only occurs in 1.7% of cases.  On this basis, the Court concluded that the prior offense was not a violent felony, and remanded for resentencing.

Thursday, December 08, 2011

The Government's acknowledged breach of a plea agreement did not affect the defendant's substantial rights or free him from his appeal waiver

In United States v. Keller, No. 10-1901 (Dec. 7, 2011), the Sixth Circuit held that under plain error review, the defendant failed to establish that the Government’s acknowledged breach of his Rule 11 plea agreement affected his substantial rights, and further held that the Government’s breach of the plea agreement did not free him from the appeal waiver contained in the plea agreement.

In the plea agreement, the Government promised to recommend a sentence within the guidelines range, which the Government anticipated to be 188-235 months. Because the Government had miscalculated the defendant’s criminal history, however, the correct range was actually 135-168 months—even applying certain offense level enhancements that the defense contested. Although the Government acknowledged at sentencing that the properly calculated guideline range was 135-168 months, it asked the Court to impose a 235-month sentence. The defendant did not object, but asked the court to reject certain offense level enhancements and impose a mandatory minimum sentence of 120 months. The district court applied the contested offense level enhancements and found the guidelines range to be 135-168 months, ultimately imposing a sentence of 168 months.

On appeal, the parties agreed that the Government had breached the plea agreement and that the defendant could establish the first and second prongs of the plain error test. But the Government maintained that because the defendant received a sentence consistent with what the Government had promised to recommend, he could not establish that the error affected his substantial rights. The court agreed, because in Puckett v. United States, 129 S.Ct. 1423 (2009), the Supreme Court made clear that where a defendant “obtained the benefits contemplated by the deal anyway (e.g., the sentence that the prosecutor promised to request),” he cannot show that a plea agreement breach violated his substantial rights under the plain error test.

The court further refused to consider the merits of the defendant’s sentencing guidelines argument on the ground that he had waived his right to appeal. The court acknowledged that in other circuits, “the Government’s breach of a plea agreement lifts the bar on appeal for a defendant who waived that right as part of his plea agreement,” but “decline[d] to follow those courts,” apparently creating a circuit split on the issue. (The parties did not dispute, and the Court appears to have taken for granted, that the defendant had a right to appeal the breach of his plea agreement as a standalone issue.)