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4th Holds Defendant Has Right to Know About ACCA Sentence at Guilty Plea – Update for January 21, 2020

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4TH CIRCUIT HOLDS LIKELY ACCA SENTENCE MUST BE MENTIONED AT PLEA HEARING

A week ago last Friday, the 4th Circuit ruled that a defendant in a felon-in-possession-of-a-firearm case (18 USC § 922(g)(1)) must be told of the risk that he or she will receive a mandatory minimum 15-year sentence under the Armed Career Criminal Act (18 USC § 924(e)) at the time the guilty plea is entered.

guilty170417Anyone is entitled to plead guilty, and a lot of people do. In fact, something like 97% of all federal defendants enter guilty pleas. That could be because of the superior law enforcement work done in ensuring that only guilty people ever get indicted. Of course, it could be that the system is rigged so that most of the time, the only rational course for a defendant to pursue is to admit to whatever the government has charged him or her with, in order to save a spouse from indictment, to secure a sentence that offers some chance of release in a reasonable time frame, or just to get out of jail and into a prison setting which is sweeter than county lockup.

Nevertheless, when a defendant enters a guilty plea, he or she gives up a panoply of constitutional rights, such as right to a trial by jury, a right to confront the accusers, the right to present evidence, the right to be found guilty only beyond a reasonable doubt. For that reason, due process and Rule 11 of the Federal Rules of Criminal Procedure require that a guilty plea be entered with the defendant aware of those rights, aware of the contents of any written plea agreement, and aware of the maximum penalty he or she faces.

changeofplea170616Jesmene Lockhart pled guilty without a plea agreement to a single § 922(g)(1) count. During a Rule 11 change-of-plea hearing (which is a lengthy formal proceeding at which the defendant changes the “not guilty” plea into a “guilty” plea), the magistrate judge asked the government to “summarize the charge and the penalty.” The government said the “maximum penalty” Jesmene faced was 10 years.

This was technically correct: at that time, everyone was reading the sentencing statute, 18 USC § 924(a)(2), which specified a maximum sentence of 10 years. No one was considering whether Jesmene had prior convictions that might result in his getting a 15-year mandatory minimum ACCA sentence under § 924(e).

But as the parties prepared for sentencing, the presentence report writer uncovered Jesmene’s prior convictions, and noticed the parties that he was eligible for the ACCA 14-year mandatory minimum sentence. Jesmene fought the ACCA designation, arguing that the convictions were too remote (he had been 16 years old), too close in time to one another, and statutorily exempt. Nothing worked.

What Jesmene did not try to do was to withdraw his guilty plea on the grounds it was not knowing and voluntary, because has was not told he could get an ACCA sentence. On appeal, even under the tougher “plain error” standard (because his trial court lawyer had not raised the issue), Jesmene claimed his guilty plea was involuntary because he had not been told about the possible ACCA sentence. He contended the benefit he gained from pleading guilty – a reduction from the bottom of his ACCA guideline range of 188 months to 180 months – was “so small as to be virtually non-existent.” Had he known about the risk of an ACCA sentence and how little a plea deal would help him, Jesmene contended, he would have had strong incentive to go to trial to try to avoid the 15-year ACCA sentence altogether.

plea161116In a January 10 en banc opinion, the 4th Circuit held that Jesmene had met the plain error standard: the failure to inform him of the ACCA sentence at the change-of-plea was an error, it was plain, it affected his substantial rights, and “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” The Circuit cited national statistics that felon-in-possession defendants only go to trial 3% of the time, but ACCA defendants choose trial 13.5% of the time, and noted that the difference in Jesmene’s guidelines as a non-ACCA defendant and under the ACCA was 125 months. Plus, his very old criminal history (three burglaries within a short time span when he was 16 years old) suggested that Jesmene, being unaware of the ACCA risk, would reasonably have expected to be sentenced at the bottom of his 46-57 month advisory guideline range. By contrast, the only benefit he got from pleading guilty to an ACCA was an 8-month break for acceptance of responsibility.

The 4th said, “the magistrate judge’s failure to inform Lockhart of the correct sentencing range was an obvious and significant mistake. Such an error undermines the very purpose of Rule 11 that a defendant be fully informed of the nature of the charges against him and of the consequences of his guilty plea… As a result of this error,  Lockhart had every reason to think after the plea hearing that he would receive a sentence within the stated statutory range of between zero and 120 months’ imprisonment…”

United States v. Lockhart, 2020 U.S. App. LEXIS 822 (4th Cir. Jan 10, 2020)

– Thomas L. Root

Reports Attack Plea Pressure, Inconsistent Drug Sentence Enhancements – Update for July 17, 2018

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NEW STUDIES SLAM GUILTY PLEA PRESSURE AND 851 ENHANCEMENTS

Two studies released last week documented affronts to justice from pressure to plead guilty, and “851 enhancements” that dramatically increase mandatory minimum sentences.

pleadeal180104A troubling study released last week by the National Association of Criminal Defense Lawyers found “ample evidence that federal criminal defendants are being coerced to plead guilty because the penalty for exercising their constitutional rights is simply too high to risk. This ‘trial penalty’ results from the discrepancy between the sentence the prosecutor is willing to offer in exchange for a guilty plea and the sentence that would be imposed after a trial.

The NACDL study documents the corrosive effect of the trial penalty on the criminal justice system, resulting from uncontrolled prosecutorial charging discretion, mandatory minimum sentencing statutes, and the Guidelines. The government’s capacity to process large caseloads without hearings or trials has resulted in an exponential increase in incarceration.

The system’s pressures on defendants to plead guilty causes innocent people to plead guilty. Of 354 defendants exonerated by DNA analysis in the last six years, 11% had pled guilty to the crime they did not commit.

The Report recommends wholesale changes in the Guidelines to exclude relevant conduct, to permit the court to award a third acceptance-of-responsibility point even without government motion, and to prevent application of an obstruction-of-justice enhancement simply because the defendant testifies. It also called for substantial revision of mandatory minimums for sentences.

pleadealb161116Ironically, the 9th Circuit reversed a sentence last week where it said the judge seemed to penalize the defendant for his decision to assert “protected Sixth Amendment right” to go to trial. The district court had emphasized the defendant’s “decision to go to trial” five separate times during the sentencing hearing, and just before imposing the sentence, declared to the defendant: “You decided to roll the dice, and it came up snake eyes. You didn’t think she’d testify, and she did. You went – you wanted to go to trial, so you went to trial. And Probation rightly recommends 327 months for that.”

The 9th Circuit held that “the district court’s statements run headlong into our precedent that a judge cannot rely upon the fact that a defendant refuses to plead guilty and insists on his right to trial as the basis for denying an acceptance of responsibility adjustment…” The Circuit complained the record did not specify which if any 18 USC 3553 sentencing factors the judge considered, “or whether it considered any facts at all beyond Hernandez’s decision to exercise his constitutional rights.” On this record, the Circuit said, “it is impossible to avoid the centrality of the comments about Hernandez’s decision to go to trial.”

mandatory170612Meanwhile, the Sentencing Commission issued a surprising report on government use of so-called 851 enhancements to drug trafficking sentences. Under 21 USC 841(b), mandatory minimum sentences are dramatically increased if the defendant has prior serious drug cases. The government triggers the higher mandatory minimum by filing a notice of enhanced penalty under 21 USC 851, which then requires the court to apply the higher mandatory minimum.

The report found that the government filed 851 enhancements in only 12.3% of eligible cases in 2016. The enhancement seems to be used mostly as leverage to force cooperation. After accounting for cases in which the notice was withdrawn, only 39% of eligible defendants ultimately got the enhanced sentence.

The rate at which 851 enhancements are filed or withdrawn varies widely among districts. In most districts in fiscal year 2016, at least 25% of all drug trafficking defendants were eligible for an 851 enhancement. In five districts, 851 enhancements were filed against more than 50% of eligible drug trafficking offenders; in 19 districts, no 851 enhancements were filed at all.

Defendants against whom an 851 information was filed received an average sentence that was 61 months longer than eligible defendants against whom the information was not filed. Black offenders constituted 51.2% of offenders against whom the government filed an information seeking an 851 enhancement, followed by white offenders (24.3%) and Hispanic offenders (22.5%).

NACDL, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (July 9, 2018)

U.S. Sentencing Commission, Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders (July 11, 2018)

United States v. Hernandez, Case No. 13-10428 (9th Cir. July 10, 2018)

– Thomas L. Root

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The ‘Hawaiian Good-Luck Sign’ – Update for May 24, 2018

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THE 6TH CIRCUIT’S REFRESHINGLY DEFERENTIAL APPROACH TO INEFFECTIVE ASSISTANCE

In an opinion piece in the Wall Street Journal yesterday, Richard Miniter urged President Trump to demand the return of the USS Pueblo, still held by North Korea after its 1968 illegal seizure in international waters. Miniter recalled Navy Commander Lloyd Bucher’s leading the crew to resist the North Koreans, who starved and tortured them. Once, the article recounted, Cmdr. Bucher instructed the crew to raise their middle fingers, a gesture he told his captors was a “Hawaiian good-luck sign.”

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The change-of-plea pas de deux for defendant and judge in a federal criminal proceeding is dictated by Federal Rule of Criminal Procedure 11, and bears more than a passing resemblance to the staged photos and confessions so favored by despots such as Rocket Man, his daddy and grand-daddy.  The defendant is asked whether everything has been fully explained to him, whether he’s happy with his lawyer, whether anyone has promised him anything not in the plea agreement, whether he feels forced into pleading guilty… 

The truth, of course, is that the defendant is rarely happy with his lawyer right about then, usually has a slew of questions (many of which he does not yet know enough to ask), was told by counsel that all sorts of bad things would happen if he rejected the plea but that he would be treated gently if he took the deal… You get the idea. Deciding whether to accept a plea offer is a complex weighing of many factors: ironically, one of the least important, at least in the federal world, is whether the defendant is guilty of the offense.

Lawyers always tell their clients to not speak out of turn, let counsel do the talking, and – when asked any of the questions we described above – to answer affirmatively. Clients, fearful of the consequences of screwing up the plea deal after they had made the psychic investment needed to accede to it, follow counsel’s advice.

Of course, down the road the defendant may realize that counsel’s advice was not the gold-leaved diamond he believed it to be when he pled guilty or appeared for sentencing. Then, his defense attorney becomes a convincing witness for the government, and the defendant is, as Big Brother put in the iconic Apple Mac “1984” ad, buried with his own confusion.

appleadB180524Indeed, sometimes  it seems the only time a district court believes a defense attorney is when he or she provides an affidavit opposing a defendant’s 28 USC 2255 motion. Last week, however, the 6th Circuit threw the hammer on defendants’ behalf, reminding district courts that something more than mindless rejection of 2255 ineffective-assistance-of-counsel motions is required by the law.

Andy Martin pled guilty to a scheme to rip off a mentally disabled patient, and then of conspiring to kill the patient’s trustee in order to pull off the fraud. Before sentencing, an attorney representing him in a civil suit over the same situation convinced him to file a pleading in the civil case in which Andy denied any intent to defraud the patient.

At sentencing, the government produced the pleading from the civil case, and argued Andy should not get any credit for acceptance of responsibility. Andy’s lawyer argued that the) motion was out of character for Andy, that he filed it in a misguided attempt to mitigate the damage done to his family, and that he nevertheless demonstrated an acceptance of responsibility by pleading guilty and in his allocution at the sentencing hearing. The district court denied any points off for acceptance.

Andy filed a pro se 2255 motion arguing that his trial attorneys provided ineffective assistance of counsel by telling him to file the civil motion, causing him to lose the 3-point reduction for acceptance of responsibility. Andy said one of his lawyers insisted that Andy include language in the civil motion that was contradictory to his guilty plea statement, and, when Andy asked whether it would affect his criminal case, his attorneys “assured him it wouldn’t.” Andy included an affidavit from his wife and mother saying the same thing.

The Government filed an opposition, attaching affidavits from Andy’s trial lawyers, the fee agreement between Andy and his lawyer relating to the civil case, and a billing statement from his lawyer for the civil representation.

Andy’s court denied the motion, saying that “although he asserts that there are facts in dispute, Martin offers no proof beyond mere self-serving allegations that either counsel was ineffective.”

beautiful180524The 6th Circuit reversed, pointing out that Andy has presented far more than mere assertions of innocence. Andy’s 2255 motion contained specific factual allegations about the deficiencies of his attorneys’ advice and assistance relating to the civil motion. He alleged his lawyer agreed to advise him on the civil matter and that Andy paid him a $4000 retainer. He alleged that between his lawyer advised him to file the civil motion, reviewed his draft motion, insisted that he include language that contradicted his guilty plea, and assured him that it would not affect his criminal case or sentencing.

Because Andy presented factual allegations that supported his ineffectiveness claim, the Court said, he is entitled to an evidentiary hearing unless the allegations cannot be accepted as true because “they are contradicted by the record” or are “inherently incredible.” The court’s statement that Andy offered no proof beyond “mere self-serving allegations” failed to acknowledge that Andy supported his allegations with more than just his own words, but the words of others, too. Plus, a “self-serving” affidavit is not inherently incredible. Most affidavits are self-serving. In fact, in the 6th Circuit, a defendant’s statements alone are sufficient to support a finding that he would have accepted a plea offer.

A self-serving affidavit is not the same as a conclusory one. And the fact that Andy did not object at sentencing when the court snatched away the 3-level reduction does not mean much, either, the Court said. “It is unusual—and generally discouraged—for a represented defendant to make objections on his own, to make his own arguments outside allocution, or to otherwise interrupt the judge or lawyers at his sentencing hearing. Martin’s failure to independently object may simply reflect a client’s reasonable decision to rely on his attorneys and follow typical court procedure.” In other words, the defendant is not expected to employ the Hawaiian “good-luck” sign at change-of-plea or sentencing in order to protect his rights later.

appleadA180524The 6th’s decision is a refreshing explanation of all the reasons district courts often place unjustified reliance on what a defendant does or does not say at sentencing, and how the fact that a defendant’s 2255 motion does not prove a fact does not necessarily make the fact inherently incredible, and thus undeserving of a hearing.

United States v. Martin, Case No. 16-3864 (6th Cir. May 14, 2018)

– Thomas L. Root

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Supremes Say Guilty Plea Does Not Rule Out Constitutional Challenge – Update for February 21, 2018

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LISAStatHeader2smallSUPREME COURT HAS CLASS, BUT NO DIMAYA

The Supreme Court handed down four opinions this morning, but the long-awaited Sessions v. Dimaya decision, which will address the broader application of the 2015 Johnson vagueness holding on “crime of violence” was not among them.

class180221Today, SCOTUS held in Class v. United States that pleading guilty to a federal crime does not prevent a defendant from challenging the constitutionality of the statute on appeal. A federal grand jury indicted petitioner, Rodney Class, for possessing guns in his locked jeep on the grounds of the United States Capitol, a violation of 40 USC 5104(e)(1). He signed a plea agreement that set forth several categories of rights that he agreed to waive, but said nothing about his right to challenge the constitutionality of the statute on direct appeal. The D.C. Circuit Court of Appeals held Class could not appeal the statute’s constitutionality under the 2nd Amendment, because by pleading guilty, he had waived all constitutional claims.

The Supreme Court reversed, holding in a 6-3 opinion that a guilty plea, by itself, does not bar a federal criminal defendant from challenging the constitutionality of his statute of conviction on direct appeal. The Court said that “where the claim implicates ‘the very power of the State’ to prosecute the defendant, a guilty plea cannot by itself bar it.” Here, Class neither expressly nor implicitly waived his constitutional claims by pleading guilty. A guilty plea, the Court said, does not bar a direct appeal in these circumstances.

So when will we see Sessions v. Dimaya? No one outside of the Justices themselves know the answer. If the Court has any opinions to issue next week, those will happen on Tuesday or Wednesday.

Class v. United States, Case No. 16-424 (Supreme Court, Feb. 21, 2018)

– Thomas L. Root

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The Price of Magical Thinking – Update for April 17, 2017

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YOU SHOULD HAVE TAKEN THE DEAL WHEN IT WAS OFFERED…

magic170417Defendants facing trial often engage in magical thinking about their cases: they believe jurors will find reasonable doubt in the most convoluted explanations, that judges will suppress evidence for the most tenuous of justifications, that they will be bailed out by the admissions of co-defendants who are being rewarded for testifying for the government.

None of this happens often. In fact, it happens so seldom – TV shows notwithstanding – that it’s newsworthy when it arises. With a conviction rate approaching 99%, the government enjoys many hits and very few misses.

But the same kind of magical thinking that convinces problem gamblers that they’re going to beat the odds afflicts defendants. What their lawyers tell them enters their ears but does not reach their brain except through a filter that strips out the cold, hard truth. And later, when the defendants have become inmates, they recall what they want to recall of it.

takedeal170417Take Glen Allen, for example. The lawyer defending him from drug trafficking charges filed a motion to suppress evidence obtained in a search, but told Glen the motion was not likely to succeed, and he should take a plea deal of 91-121 months. Glen refused the deal, and told his lawyer not to negotiate any more deals. He said the proposed sentence “was too much time for me to do according to my involvement.”

Glen figured he knew better than his attorney, so he tried to file his own motion to suppress. When that didn’t work, he asked to hire a new lawyer, which was granted.

When he hired new counsel Clay Janske – whom Glen selected because he “would not be scared” to try the case before a jury – Glen explained to him that he was not interested in a plea deal and told him not even to discuss a new plea offer. Clay litigated the motion to suppress, which was denied. A few days prior to trial, a co-defendant agreed to testify against Glen. The government told Clay that if Glen went to trial, it would seek an enhanced sentence under 21 USC 851 based on Glen’s prior drug felonies. The enhancement would give Glen a mandatory life sentence.

Glen came to his senses, and took the latest plea deal, a mandatory minimum of 10 years. The court figured his guidelines at 121-151 months, and gave him the bottom.

mistake170417Glen filed a petition under 28 USC 2255, claiming his attorney was ineffective in explaining the first plea agreement to him. Gary said Clay told him he would only get “a couple of more years” if he went to trial instead of pleading guilty. Clay said he had told him that, but it was based on inaccurate information Glen gave his lawyer about his criminal history. Glen said that if Clay had properly advised him about the potential of a mandatory life sentence, he would have pleaded guilty before the suppression hearing. Instead, he pleaded guilty right before trial and faced a 10-year mandatory minimum instead of a 5-year one.

What Glen didn’t get – and many defendants don’t get – is that it is not enough just to show a lawyer gave lousy advice about a plea deal. After all, lawyers do that all the time, either because they’re not focused, not very bright, or not working the right information. In order to win a claim of ineffective assistance for bad advice on a plea, a defendant has to be able to show that but for the bum advice, he or she would have probably taken the deal. Last Friday, the 8th Circuit showed just how inflexible a standard that can be.

oops170417The appeals court held Glen had nothing coming, because being ignorant of the risk he might get a life sentence was not all that drove Glen’s decision. True, the Court said, Glen pointed to the fact that once he learned he might get a life sentence, he quickly pleaded guilty. Glen argued that fact showed a “substantial, not just conceivable, likelihood” that he would have accepted the initial plea offer had Clay only advised him he could get life. The Circuit held, however, that it was clear that Glen’s decision “was motivated by his belief that the plea offer was not favorable enough and his hope that he would succeed on the suppression motion.”

guilty170417The district court found that two factors — the decision of Glen’s co-defendant to testify and the possibility of a life sentence — influenced Glen’s decision to plead guilty. In other words, Glen failed to prove that “but for his counsel’s advice, he would have accepted the plea.”

“Under similar circumstances,” the Circuit said, “we concluded a habeas claimant failed to show prejudice in part because he was unwilling to consider pleading guilty, had always expressed a desire to proceed to trial, and none of counsel’s discussions about the possibility of a guilty plea seemed to sway him.” Thus, the Court held, Glen “failed to prove, by a substantial likelihood, that he would have accepted the offer to plead pursuant to the earlier proposed terms.”

Allen v. United States, Case No 15-3607 (8th Cir. 2017)

– Thomas L. Root

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