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.