2255 Provides No Relief for Defendants Sentenced Under Mis-Advisory Guidelines
“The lodestar,” the “starting point,” the “initial benchmark,” and “central”—these are words the U.S. Supreme Court has used to describe the Sentencing Guidelines. As the Court acknowledged, the U.S. Sentencing Commission’s research confirms, those words accurately describe the anchoring effect of the Sentencing Guidelines. When the Guidelines range increases, then sentences get longer.
More recently, the Supreme court held that “an error resulting in a higher range than the Guidelines provide usually establishes a reasonable probability that a defendant will serve a prison sentence that is more than ‘necessary’ to fulfill the purposes of incarceration.” Rosales-Mireles v. United States, 138 S. Ct. 1897, 1907 (2018). Thus, plain Guidelines errors should be corrected even if they are unpreserved because “[t]he risk of unnecessary deprivation of liberty particularly undermines the fairness, integrity, or public reputation of judicial proceedings in the context of a plain Guidelines error because of the role the district court plays in calculating the range and the relative ease of correcting the error.” Id. at 1908.
One of the most consequential guidelines in the Sentencing Manual is the Career-Offender Guideline, U.S.S.C. § 4B1.1. Under that provision, defendants who have been convicted of two or more felonies that are “crimes of violence” or “controlled substance offenses” face a dramatic increase in the overall offense level. Their Criminal History Category also changes, as it must be VI—the highest level available. Consequently, the career-offender designation catapults defendants into significantly higher Guidelines ranges.
What should happen if, a few years after a sentence became final, a defendant learns that the court should not have treated him as a career offender in the first place?
At the time Dwight Bullard was sentenced, the Sixth Circuit treated attempted drug trafficking offenses as “controlled substance offenses” based on the commentary to the Career-Offender Guideline. Nothing in the text of the Guideline supported the theory that attempt offenses satisfied the definition of a “controlled substance offense,” and so the Sixth Circuit corrected course this year in United States v. Havis.
Because of Havis, the “starting point” for his sentence changed from 292–365 months to 92–115 months, Mr. Bullard filed a motion under 28 U.S.C. § 2255 to vacate his sentence. Although judge did not sentence him within the advisory Guideline range, his final sentence of 140 months’ incarceration was above the correct sentence.
This week, the Sixth Circuit held that Mr. Bullard cannot get a new sentencing hearing because the incorrect Guideline calculation did not result in “a complete miscarriage of justice.” According to the Court, the advisory nature of the Guidelines makes it too hard to determine of the misapplication of the Guideline renders a sentence fundamentally unfair, and so these claims are not cognizable on collateral review.
Mr. Bullard and his family may not think a sentence 35 months above “the initial benchmark” is fair. But unless the en banc court or the Supreme Court intervene, people like Mr. Bullard, whose time as passed to file a direct appeal, have to serve sentences affected by erroneous Guideline calculations.