To prove ineffective assistance of counsel, a defendant must prove two things. First, he must prove that his attorney provided poor representation. Second, he must prove that that poor representation likely made a difference in the outcome of the case. When a defendant pleads guilty because of bad advice, both of these requirements are met. In a recent Third Circuit case, the defendant pled guilty to manufacturing marijuana within 1000 feet of a school (21 U.S.C. § 860). The reason he pled guilty was that his attorney had advised him that he would be eligible for a reduced sentence under the “safety valve” law. The “safety valve” law (18 U.S.C. § 3553(f)) provides a way for defendants charged with certain offenses to receive sentences below what would otherwise be mandatory minimums. In this case, the defendant pled guilty because his attorney told him that he would be able to receive a sentence of less than 10 years – even though a 10-year mandatory minimum applied in his case. The problem was that 21 U.S.C. § 860 is not one of the offenses listed in the safety valve statute. It became clear that the defendant had been misadvised when his attorney filed a motion seeking a safety valve reduction. The Court vacated the defendant’s conviction and remanded for further proceedings in the district court. On remand, the defendant may be able to negotiate a plea to a safety-valve eligible count. United States v. Bui, 2114 WL 5315061 (3d Cir. Oct. 20, 2014)
Prosecutor's Inflammatory Remarks Violate Plea Agreement
When a defendant enters into a plea agreement with the government, he is entitled to the benefit of that bargain. If the government fails to live up to its end, the appropriate remedy is normally resentencing before a different judge – a judge that was not influenced by the government’s broken promises. Last month, the Ninth Circuit ruled that the government must also live up to the spirit of its promises. It also ruled that in some cases additional relief is appropriate. In United States v. Heredia, 2014 WL 5018109 (9th Cir. October 8, 2014), the prosecution entered into a plea agreement pursuant to Rule 11(c)(1)(C) in which it agreed with the defense that a six-month sentence was the appropriate disposition in that illegal reentry case. The government also agreed not to suggest that the court not impose the agreed-upon sentence. Under Rule 11(c)(1)(C), a court is required either to impose the agreed sentence or to give the defendant the option of withdrawing his plea. In this case, the prosecution asked the court to accept the agreement and to impose the agreed-upon sentence, but went out of its way to make inflammatory references to the defendant’s prior criminal history. Although defense counsel objected, alleging a breach in the agreement, the district court denied the motion, ruling that it was not influenced by the prosecution’s statements. The district court then rejected the agreement and offered the defendant the opportunity to withdraw his plea. The defendant chose to plead open – without an agreement – and received a sentence of 21-months. On appeal, the Ninth Circuit agreed that the government had violated its agreement and remanded for resentencing before a difference judge. In doing so, the Court noted that while the normal remedy when the government violates a plea agreement is remand for sentencing before a different judge, the appropriate remedy in this case should have been to vacate the conviction as well as the sentence so as to return the defendant to the same position he was in before the government’s breached its agreement. Because the defendant was already serving a judgment of conviction, simply vacating his sentence would not make it possible for him to withdraw his plea should the new judge also reject the agreement. Rather than grant the appropriate remedy, however, the court remanded only for resentencing, since that is what the defendant requested. Should the new judge also reject the agreement, the defendant should consult with an experience post-conviction attorney to consider his options. United States v. Heredia, 2014 WL 5018109 (9th Cir. October 8, 2014).
First Circuit Remands for Resentencing Based on Alleyne Error
Back in 2013, the Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013) extended its holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), to apply to mandatory minimum sentences as well as statutory maximums. After Alleyene, a defendant cannot be subjected to a mandatory minimum sentence unless the triggering facts (usually a drug amount) are proved beyond a reasonable doubt. While many defendants were hopeful that Alleyene would help them get reduced sentences, in practice few people have benefited. Which is why the First Circuit’s decision last month in United States v. Barnes, 2014 WL 507284 (October 10, 2014), is worth noting. The defendant in that case had pled guilty to conspiring to distribute more than 50 kilograms of marijuana – an offense with a 20-year maximum, but no mandatory minimum. At sentencing, the court found by a preponderance of the evidence that the defendant was responsible for 3,000 kilograms and made it clear that as a result he was subject to mandatory minimum of ten years’ imprisonment and five years’ supervised release. The court imposed a sentence of 210 months’ imprisonment and five years’ supervised release. On appeal, the government conceded Alleyene error, but argued that it was harmless, since the court imposed a sentence of imprisonment higher than the mandatory minimum. With respect to the term of supervised release, the government argued the Court should review that error under the less favorable “plain error” standard because defense counsel did not explicitly object to the five year term. The Court rejected both of the government’s arguments. First, the Court ruled that the error was not harmless because the district court seemed to have taken the mandatory minimum into account in arriving at the final sentence. But for the mandatory minimum, the final may well have been shorter. With regard to the supervised release, the Court construed defense objection to the imposition of any mandatory minimum as covering supervised release.
The Court noted that Alleyne error can be harmless if no reasonable jury hearing the same evidence could have found beyond a reasonable doubt the defendant responsible for less than the triggering amount of drugs. Since the government never made that argument, the Court considered it waived. The takeaway from the case may well be that it is important to make any non-frivolous Alleyene objections even if the government has good defenses to them. Sometimes the government forgets to raise them. United States v. Barnes, 2014 WL 507284 (October 10, 2014).
Attempted Burglary in Missouri Does Not Support 15-Year ACCA Sentence
The Armed Career Criminal Act (“ACCA”) provides for a 15-year mandatory minimum sentence for the unlawful possession of a firearm by a previously convicted felon who has three qualifying prior convictions. 18 U.S.C. § 924(e). To support an ACCA sentence, a prior conviction must be for “a violent felony, a serious drug offense, or both.” Id. Litigation concerning what offenses support and ACCA sentence have focused on the statute’s inclusion of “burglary” in the list of qualifying offenses. One problem is that there is no uniform definition of the crime of burglary. In some states, breaking into a car can be classified as a burglary. To qualify a burglary statute must criminalize “conduct that presents a serious potential risk of physical injury to another.” The Supreme Court has held that only burglary statutes which criminalize “generic” burglary – unlawful entry into a building or other structure with intent to commit a crime can support an ACCA sentence. Taylor v. United States, 495 U.S. 575 (1990). More recently, the Court upheld an ACCA sentence for attempted burglary where the burglary statute in question (the Florida statute) requires proof of an over act directed toward the entry of the building or other structure. James v. United States, 550 U.S. 192 (2007). This past October, the Eighth Circuit examined Missouri’s attempted burglary statute in light of the James case, and found it wanting. Unlike in Florida, a person can be convicted of attempted burglary if he takes any substantial step toward the commission of the offense – including casing the place or obtaining materials to use in the burglary. The Eighth Circuit has now held that such acts, unlike steps toward actually breaking into a building, are not “conduct that presents a serious potential risk of physical injury to another.” The court vacated the sentence and remanded for resentencing. United States v. Reid, 2014 WL 5314563 (8th Cir., Oct. 20, 2014).
Obstruction Adjustment Must Be Supported by Explicit Findings
The Guidelines provide for a two-level upward adjustment for obstruction of justice. USSG § 3C1.1. Because Courts often apply this adjustment whenever a defendant is convicted after testifying in his own defense at trial, the adjustment serves as a disincentive to a defendant’s exercising that constitutional right – even though Application Note 2 states that that is not its intent. Last month, the Ninth Circuit joined the Sixth and Tenth Circuits by adding a little more protection for defendants by requiring that a sentencing court not only find that the defendant gave false testimony, but also make explicit findings that it was material (that is, that it tends to exonerate the defendant), and that it was willful (i.e., that it was not the result of faulty memory, confusion, or mistake). Because the district court had failed to make such findings, the Ninth Circuit vacated the sentence and remanded for further proceedings. Hopefully on remand the defense will be able to demonstrate not only that any false testimony was not willful, but also that it was not material. United States v. Castro-Ponce, 2014 WL 5394061 (9th Cir. Oct. 24, 2014).
Apprendi Error Results Remand for Lower Sentence
Back in 2000, the Supreme Court held that any fact that increases the maximum possible sentence must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000). Unfortunately, over the past 14 years, Apprendi error has often not resulted in lower sentences. Sometimes Court of Appeals have found it not to be plain error (in cases in which the error was not raised in the district court). In others, Courts of Appeals have found it harmless. Last month, the Fourth Circuit rejected the government’s harmless error argument and vacated a defendant’s 16-month term of imprisonment for making false statements to obtain federal worker’s compensation benefits in violation of 18 U.S.C. § 1920. The statute provides for a maximum sentence of five years’ imprisonment unless “the amount of the benefits falsely obtained does not exceed $1,000,” in which case the punishment cannot exceed one year’s imprisonment. In this case, the jury made no finding concerning loss. The government argued that the error was harmless since the evidence was overwhelming that the defendant received in excess of $100,000 in benefits. While the Court did not disagree with that figure, it focused on the requirement that to qualify for more than a year’s imprisonment, more than $1,000 of loss must be from benefits “falsely obtained.” The defendant’s false statement involved his failure to report $635 he had received for working. The government’s own witness testified that the defendant could receive small amounts of income and still be entitled to benefits. Under these conditions, the Fourth Circuit held that the evidence was far from “overwhelming” that the loss from false statements exceeded $1,000. It therefore vacated the sentence and remanded for imposition of a sentence of no more than one year’s imprisonment. United States v. Catone, 2014 WL 5158197 (4th Cir. October 15, 2014).
California Felon-In-Possession Conviction Not Aggravated Felony Under Guidelines
The sentencing guideline applicable to the crime of reentering the United States after having been deported (8 U.S.C. § 1326(a)) provides for an 8-level increase if the defendant had been previously convicted of an “aggravated felony.” USSG § 2L1.2(b)(1)(C). The Statute itself raises the statutory maximum from 10 to 20 years in such cases. 8 U.S.C. § 1326(b)(1) and (2). Under the guideline, a conviction for the offense of being a felon in possession of a firearm is an aggravated felony. While state as well as federal convictions for this offence can be aggravated felonies – state convictions don’t count if they criminalize conduct that is not covered by the federal statute. As it turns out, under federal law it is not illegal for someone previously convicted of a felony to possess an “antique firearm.” 18 U.S.C. § 921(a)(3). Since the California felon-in-possession statute does not include an antique firearms exemption, conviction under that statute does not count as an aggravated felony under federal law. That is so, even if a prior California conviction was based on possession of a firearm that would have been illegal under federal law. That is the holding last month of the Ninth Circuit. The Court vacated the defendant’s sentence and remanded for resentencing. United States v. Hernandez, 2014 WL 5314991 (9th Cir. Oct. 20, 2014).
D.C. Circuit Reverses Conviction in Attempted Child Sexual Abuse Case
Last month the D.C. Circuit reversed a conviction for attempting to persuade a minor to engage in unlawful sexual conduct. See 18 U.S.C. § 2422(b). As is common in these kinds of cases – no child was actually involved. Instead, an undercover officer engaged in online conversations with the defendant through a chatroom. After the officer claimed to have access to a 12-year-old girl and a three-year-old boy, the defendant asked the officer to arrange for a sexual encounter. On appeal, the Court found that the district court erred when it instructed the jury that it could find the defendant guilty if it found beyond a reasonable doubt that he had persuaded someone else to arrange for unlawful sexual conduct. While the defendant need not be the one who directly attempts to persuade a minor – he must at minimum cause someone else to attempt to persuade one – not simply to arrange for an encounter. The district court’s instruction did not do this. The district court’s second error was to exclude the testimony of Dr. Fred Berlin -- a board certified psychiatrist and founder of the Sexual Behaviors Consultation Unit at the Johns Hopkins University Hospital. Dr. Berlin would have testified on “the difference between a desire actually to engage in sexual activity with a minor and mere fantasy and role playing,” (2) on his diagnosis that the defendant did not suffer from a psychiatric condition that made him want to have sexual contact with children, and (3) on the relationship between viewing child pornography and sexual interest in children. This evidentiary ruling is a major win for the defense. I have worked with Dr. Berlin on a number of cases. He is a powerful witness because he has the unique ability to explain sexual disorders involving attraction to children in ways that make them less frightening and more understandable – and even to evoke compassion for the people who suffer from them. While I have used Dr. Berlin at sentencing, this case shows that he and experts like him can also be useful at trial. United States v. Hite, 2014 WL 5343626 (D.C.Cir. Oct 21, 2014).
Plain Error Not to Invite Defendant to Speak Prior to Sentencing for Violation of Supervised Release
Last month, the Third Circuit reversed a violation of supervised release based on the district court’s failure to directly address the defendant to offer him the opportunity speak in mitigation of sentence. This is required by Rule 32(i)(4)(A)(ii) of the Federal Rules of Criminal Procedure. Not only did the Court find that the district court had erred – it found that the error was “plain error,” which is the more demanding standard of appellate review that applies when an error was not first presented to the district court. The Court vacated the district court’s order and remanded for resentencing. UnitedStates v. Paladino, 2014 WL 5012694 (3d Cir. Oct. 8, 2014)