Supreme Court Updates: June 25, 2010
1. Immigration Consequences in Plea Bargaining
a) Padilla v. Kentucky, 130 S. Ct. 1473 (2010) – A defense lawyer was ineffective for not warning his noncitizen client that he would almost certainly be deported if he pled guilty.
b) Retroactivity – As an application of Strickland v. Washington, 466 U.S. 668 (1984), this case will have some retroactive effect for individuals who have state habeas, § 2254, and § 2255 remedies still available.
c) There was disagreement among the justices as to what the specific defect in representation was. Alito and Roberts rested their concurrence on the fact that the lawyer gave Padilla incorrect advice: that he had nothing to worry about because he had been in the country so long. However, the majority, written by Stevens, held that because the indirect consequences of pleading guilty were both critically important and “truly clear,” the lawyer had an affirmative “duty to give correct advise,” as opposed to a duty not to give incorrect advice.
d) Many states already require trial courts to alert defendants to possible immigration consequences. Tennessee is not one them.
e) This was a landmark decision in that it is the first time that the Court has held an attorney ineffective for failing to advise a client about a consequence of a conviction that is not part of the sentence. The opinion also left open the possibility of extending the requirement to other “collateral” consequences of pleading guilty such as sex offender registration, loss of license, firearm possession ban, ineligibility of public benefits, or the right to adopt.
2. Waiver language issues in plea agreements
a) District court’s failure to probe defendant’s understanding of appellate waiver provision in his plea agreement, as required by criminal procedure rule, upon his entry of guilty pleas to cocaine and firearm offenses, was plain error, since court’s mere questioning at rearraignment hearing whether defendant understood that under some circumstances he or government may have right to appeal any sentence imposed did not alert defendant that plea agreement required him to waive his right to appeal and did not determine that he understood waiver provision, but rather, court informed defendant that he had right to appeal. United States v. Almany, 598 F.3d 238 (6th Cir. 2010).
b) Booker waivers are valid in most circuits- United States v. Compean, 214 Fed. Appx. 428 (5th Cir. 2007); U.S. v. Castro 2009 WL 2145304 (5th Cir. July 20, 2009).
United States v. Magouirk, 468 F.3d 943 (6th Cir. 2006).
United States v. Isaacs, 301 Fed. Appx. 183 (3d Cir. 2008).
United States v. Rubbo, 396 F.3d 1330 (11th Cir. 2005).
United States v. Blick, 408 F.3d 162 (4th Cir. 2005).
United States v. Green, 405 F.3d 1180 (10th Cir. 2005).
But see United States v. Cole, 158 Fed Appx. 130 (10th Cir. 2005) (preservation of right to appeal gun enhancement was broad enough to include Booker where court sentenced defendant mandatorily).
United States v. Reeves, 410 F.3d 1031 (8th Cir. 2005).
United States v. Cortez-Arias, 425 F.3d 547 (9th Cir. 2005).
Therefore, your work must be done up front in negotiating the plea. Argue for mitigation and consideration for giving up Booker rights or limit the waiver. The dilemma is that the court is required to address 18 U.S.C. § 3553 factors and an attorney’s obligation to represent those factors to the court are in conflict with these waivers.
c) Reserve right to appeal a sentence above a certain guideline level or sentence while at the same time using the “elements of the offense” to establish what you are trying to accomplish. Place the facts needed to support the sentencing recommendation into the plea agreement.
Example: Elements of the Offense. “DEFENDANT understands the following legal elements of the offense stated in the Information, and admits that those elements accurately describe his criminal conduct:
“Waiver of Appeal and Collateral Attack. The Defendant acknowledges that, after consultation with defense counsel, he fully understands the extent of his rights to appeal, and/or to collaterally attack the conviction and sentence in this case. The Defendant waives any and all rights, including those conferred by 18 U.S.C. § 3742 and/or 28 U.S.C. § 2255, to appeal or collaterally attack his conviction and any sentence of imprisonment of 6 months or less.”
d) Getting more out of waivers
“As part of this agreement, the United States agrees to recommend a further 2 level reduction in the Defendant’s sentencing Guideline range pursuant to Section 5K2.0 USSG for waiver of appeal and any post-conviction collateral attack.”
Scope of the Waiver
1. In United States v. McCoy, 508 F.3d 74, 77 (1st Cir. 2007), the defendant waived his right to appeal “a sentence which does not exceed that being recommended by the U.S. Attorney, as set out in Paragraph 4 [(which stated that the government will request “[i]ncarceration within the guideline range”)] and, even if the Court rejects one or more positions advocated by the U.S. Attorney or Defendant with regard to the application of the U.S. Sentencing Guidelines.” The court held that, at best, this language is ambiguous and thus the appellant had the right to appeal the application of the Guidelines to his case. Id. at 78.
“The language in paragraph 19 (of the plea) is also ambiguous by its use of the term “variance” in connection with the Guidelines. Variance evokes the § 3553(a) factors, not the Guidelines. Departures must comply with the guidelines, while variances must have a reasonable basis in the §3553(a) factors. United States v. Moreland, 437 F.3d 424, 432 (4th Cir. 2006). Using the term “variance” can reasonably lead a defendant to conclude that he/she has a right to appeal variances, and the misapplication of the §3553(a) factors.”
2. United States v. Zepeta, 09-13600 – Eleventh Circuit case where government’s motion to dismiss based on appeal waiver was denied where waiver said that the client could not appeal a sentence higher than the “otherwise applicable advisory sentencing guideline range” as opposed to the upward departure or variance language the government sometimes uses. The court’s order states that the term “otherwise applicable” is broader than the government’s argument that “otherwise applicable” means upward departure and allowed appeal on what the applicable guideline range should have been and whether an enhancement should apply.
C. Crack Cocaine Updates
1. Amendment 706
a) The amendment allowing an 18 U.S.C. § 3582 motion to be filed for two level adjustments in crack cocaine cases is not reviewable for any additional reductions of the sentence. United States v. Doublin, 572 F.3 235 (5th Cir. June 22, 2009).
b) Of the Courts who have considered this issue, the First through Fifth, Seventh, Eighth, Tenth, and Eleventh have rejected Booker’s application to sentence reductions under 18 U.S.C. § 3582, and have held the Guideline § 1B1.10 (which prohibits reductions “to a term that is less than the minimum of the amended guideline range”) limitation to be mandatory. See United States v. Fanfan, 558 F.3d 105 (1st Cir.2009); United States v. Savoy, 567 F.3d 71 (2d Cir.2009); United States v. Doe, 564 F.3d 305 (3d Cir.2009); United States v. Dunphy, 551 F.3d 247 (4th Cir.2009); United States v. Cunningham, 554 F.3d 703 (7th Cir.2009); United States v. Starks, 551 F.3d 839 (8th Cir.2009); United States v. Rhodes, 549 F.3d 833 (10th Cir.2008); United States v. Melvin, 556 F.3d 1190 (11th Cir. 2009).
c) Only the Ninth Circuit has held that, for an 18 U.S.C. § 3582(c)(2) resentencing, district courts can reduce the sentence below the amended guideline range. United States v. Hicks, 472 F.3d 1167 (9th Cir. 2007).
d) The Sixth Circuit recently agreed with the majority of the circuits that Booker does not apply to a 3582 motion. United States v. Washington, 584 F.3d 693 (6th Cir.(Tenn.) Oct 27, 2009), rehearing and rehearing en banc denied (Jan 27, 2010).
e) Dillon v. United States, 09-6338, Supreme Court, June 17, 2010, on cert from the Third Circuit. Booker does not apply to resentencing pursuant to a 3582 motion. However, while this is bad for Dillon and other defendants in his situation, it may be good for other defendants. The USSC submitted an amicus brief to the Court in this case issuing a “subtle threat” as characterized by Justice Stevens, that if Booker was held to apply to resentencing for guidelines changes, then the Commission would be wary of making amendments retroactive.
f) So far, offenders are not eligible for resentencing below career offender status under 3582(c) for the crack cocaine amendment.
· United States v. Martinez, 572 F.3d 82 (2d Cir. 2009)
· United States v. Mateo, 560 F.3d 152 (3d Cir. 2009)
g) The Sixth Circuit recently decided in United States v. Pembrook, 08-6452 (6th Cir. June 11, 2010), that where a defendant, although a career offender, was originally sentenced according to the crack cocaine guidelines due to the district court’s grant of a departure after determining that his criminal history was overstated, he is not entitled to be resentenced under amendment 706 because the “applicable guideline range” is the career offender range, not the crack cocaine range. The defendant and the dissenting judge argued that he was sentenced according to his crack cocaine guidelines and therefore should be eligible for the reduction as those guidelines are now lower.
h) There is a circuit split as to the question of whether amendment 706 applies when defendants were sentenced according to the crack cocaine range rather than the career offender range. This issue is ripe for Supreme Court review.
i) The denial of a motion for reduction of sentence is appealable. United States v. Colson, 573 F.3d 915 (9th Cir. July 23, 2009) and United States v. Leniear, 574 F.3d 668 (9th Cir. June 18, 2009).
j) There is no right to counsel on 3582 crack amendment motions. United States v. Harris, 568 F.3d 666 (8th Cir. 2009). Since this is reviewable on appeal, then a right to counsel may attach at that level.
k) A defendant is not eligible for the two points even if they are serving a sentence that exceeds a sentence received in the crack cocaine offense. In United States v. Gamble, 572 F.3d 472 (8th Cir. 2009), Gamble had already served the 60-month sentence on the crack cocaine offense but was serving a 15-year consecutive term of imprisonment. Once the 60 months had passed he was no longer eligible for the crack deduction. See also U.S. v. Tolliver, 570 F.3d 1062 (8th Cir. 2009).
l) Be creative on crack offender issues by asking for departure on career offender overrepresentation of the criminal history score. The court knows of the crack controversy and may give some flexibility without even identifying why. See United States v. Myers, 569 F.3d 794 (7th Cir. 2009). Obviously, be able to support the overrepresentation issue by identifying that there were old priors or they were minor offenses.
2. Crack Cocaine Ratio
a)Spears v. United States, 129 S. Ct. 840 (2009) – Sentencing judges possess authority to reject categorically the sentencing range prescribed by the Guidelines, even in “a mine-run case where there are no ‘particular circumstances’ that would otherwise justify a variance from the Guidelines’ sentencing range.” Spears recognized that district courts possess the “authority to vary from the crack cocaine Guidelines based on a policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular case.”
b) At least five district courts have held that they will always apply a 1:1 ratio on sentencing of crack offenders following Spears reasoning.
1. United States v. Gully, 619 F. Supp. 633 (N.D. Iowa May 18, 2009);
3. United States v. Medina, No. 08CR256-L, 2009 WL 2948325 (S.D. Cal. Sept. 11, 2009);
4. Henderson v. United States, No. 09-20, 2009 WL 2969507 (E.D.La. Sept. 11, 2009);
5. United States v. Russell, Crim. No. 06-72 Erie, 2009 WL 2485734 (W.D.Pa. Aug. 12, 2009).
3. Statutory Changes
a) S. 1789: Fair Sentencing Act of 2010 – March 17, 2010 – the Senate passed legislation reducing the 100:1 crack to cocaine ratio to 18:1. We are still awaiting action on this or a similar bill in the House.
Practitioners may wish to apply for continuances of any pending sentencings in crack cocaine cases. See Model Motion for a Continuance http://www.fd.org/pdf_lib/Model%20Motion%20to%20Contin%20Sentg.pdf
b) In United States v. Kimmons, 09-60779 (5th Cir. June 2, 2010), the Fifth Circuit recently held in an unpublished opinion that, consistent with the mandatory minimums currently on the books and that the Supreme Court stated in United States v. Kimbrough, 552 U.S. 85, 107 (2007), that “sentencing courts remain bound by the mandatory minimum sentences prescribed in the 1986 Act.”, the court was unable to sentence the defendant lower than the mandatory minimum even on the precipice of Congress’ impending changes to the crack/cocaine ratio.
BOP GOOD TIME CREDIT – In Barber v. Thomas, 09-5201, June 7, 2010, 7-3 decision. the Supreme Court upheld the BOP’s way of calculating good time credit. The BOP was correct to award good-time credits to prisoners only after they have served in prison rather than based on the entire length of their sentence.
OTHER RECENT SUPREME COURT CASES IMPACTING SENTENCING
1. United States v. Comstock, 08-1224, May 17, 2010 – The Court upholds the law passed by Congress to order the civil commitment of a mentally ill federal prisoner who is a sex offender with the commitment to continue beyond the date the inmate otherwise would be release.
2. Carr v. United States, 08-1301, June 1, 2010 – The federal Sex Offender Registration and Notification Act (SORNA) requires defendants who commit certain sex-related offenses to register with state and federal databases. The Court held that a defendant who committed a sex-related offense before SORNA became law is not required to register under the statute.
3. United States v. Marcus, 08-1342, May 24, 2010 – When a defendant raises an issue on appeal that he did not raise in the district court, that argument is generally subject to “plain error review,” which is hard to prove. In this case, the defendant argued for the first time on appeal that he had been unconstitutionally convicted for conduct that occurred before the criminal statute was enacted. The Court held that this error did not “affect the appellant’s substantial rights” or “seriously affect the fairness, integrity or public reputation of judicial proceedings” and therefore did not warrant a new trial.
4. Dolan v. United States, 09-367, June 14, 2010 – A sentencing court that has missed the 90-day deadline may nevertheless order restitution, at least in some circumstances.
5. Carachuri-Rosendo v. Holder, 09-60, June 14, 2010 – Federal law forbids a lawful permanent resident who has been convicted of an “aggravated felony” from asking an immigration judge to cancel his deportation. A defendant who is convicted multiple times for drug offenses can be deemed to have committed an aggravated felony. The Court held that a second or subsequent crimes of possession of drugs are not aggravated felonies under federal immigration law when the underlying state conviction is not based on the fact that there was a prior conviction.