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.