Tag Archives: plain error

Counsel Should Be Smart Enough to Know the Court is Wrong – Update for January 8, 2018

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


It has happened often enough before: A Circuit decision was plainly against a sentencing position the defendant wanted to take, and so counsel did not fight the issue. Then, after the defendant’s conviction is final, the law changes. Was counsel ineffective for not raising the issue?

violence151213Jolol Carthorne was sentenced as a Guidelines career offender in part because he had a Virginia prior for assaulting a police officer. Circuit precedent at the time held the crime to be a crime of violence, and his lawyer did not fight it, despite the fact that Virginia law held that the slightest touching was enough for conviction.

On appeal, Jolol argued that the assault should not count for career offender status. The problem, of course, was that Jolol did not raise the issue at sentencing, so he could only win the issue if the district court committed plain error. The Circuit agreed that his assault on the cop was not a crime of violence, but said that because its prior decisions (all of which had since discredited by Johnson and Mathis and other Supreme Court cases) were binding on the district court when Jolol was sentenced, the sentencing error was not FRCrimP 52(b) “plain error.” Jolol had noting coming.

assault180108Jolol then filed a 2255 motion complaining that his lawyer should have argued that a Virginia conviction for assaulting a cop was no longer a crime of violence. His lawyer admitted he was not even aware of the analysis required by the recent Supreme Court cases application offenses, such as Johnson v. United States, Mathis v. United States, and  Descamps v. United States, for purposes of the career offender enhancement. But the district court said that since there was no plain error in sentencing Jolol as a career offender, there was no ineffective assistance of counsel standard in not raising it.

On the Thursday before Christmas, the 4th Circuit ruled for Jolol. It said that the plain error standard and ineffective assistance of counsel are not the same thing. “The ineffective assistance inquiry focuses on a factor that is not considered in a plain error analysis, namely, the objective reasonableness of counsel’s performance. In addition, plain error review requires that there be settled precedent before a defendant may be granted relief, while the ineffective assistance standard may require that counsel raise material issues even in the absence of decisive precedent… Claims of ineffective assistance are evaluated in light of the available authority at the time of counsel’s allegedly deficient performance. But the plain error inquiry applies precedential authority existing at the time of appellate review.”

dumblawyer180108Defense counsel must demonstrate a basic level of competence regarding the proper legal analysis governing each stage of a case. Therefore, he or she may be constitutionally required to object when there is relevant authority strongly suggesting that a sentencing enhancement is not proper. The Circuit said that was the case here, where newer cases made clear that Virginia assault and battery did not categorically present serious risks of physical injury. Defense counsel should have known to make the argument, even though the district court probably would have rejected it because of circuit precedent.

United States v. Carthorne, Case No. 16-5613 (4th Cir., Dec. 21, 2017)

– Thomas L. Root


“Any Last Words?” — Allocution Prejudice Is Once Again Presumed – Update for May 30, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


For more than 300 years, courts have recognized that a criminal defendant has a right to speak directly to the court before sentence is imposed. The judge’s failure to ask a defendant if he had anything to say – known as the right of allocution – traditionally has always required reversal. After all, as the Supreme Court put it, “the most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

allocution170530The allocution cases that make it to appeal inevitably result because the judge forgets to offer the defendant the right, and the defense attorney fails to notice the omission. In those cases – because no objection has been lodged – in order to complain about the mistake, a defendant had to show “plain error” that prejudiced him, affected his “substantial rights” as Federal Rule of Criminal Procedure 52 puts it.

Until the Guidelines came along in 1987, the courts always assumed that a defendant had been prejudiced if he or she was denied allocution, because the right had “symbolic meaning that lent legitimacy to the sentencing process.” But after the Guidelines, courts ruled that prejudice could be found only if a defendant was not “given the opportunity to speak to the court when the possibility of a lower sentence existed.” Until United States v. Booker – that is, for about 18 years – the Guidelines were mandatory, meaning the judge had virtually determined by the Guidelines’ confusing calculus.

This meant that if a defendant had a mandatory sentencing range of, say, 108-121 months, and the judge sentenced him or her to 108 months, the defendant could not claim prejudice because he or she was denied a chance to speak, because practically speaking, the defendant had already gotten the best deal he or she could possibly get. No harm, no foul.

guidelines170530Then the Guidelines became advisory. Yet in the 12 years since Booker, no court has bothered to change the “no prejudice” rule. Thus, when Tony Doyle appealed the fact the district court forgot to give him his right of allocution, the government argued that because Tony had gotten sentenced at the bottom of his Guideline range, the denial of the right to allocate did not hurt him.

Last week, the 11th Circuit said it was time to pitch the old Guidelines “no prejudice” presumption. Pointing out that Booker brought a “sea change” in sentencing practices, the Circuit said “a sentence outside the guidelines range is not the extraordinary event that it once was.” In fact, during 2016 almost half of the sentences handed out in the 11th Circuit were below the Guidelines range.

“Because Booker knocked out” the premise that the bottom of the Guidelines range was as good as it was going to get for the defendant, the Circuit said, “a defendant will generally be entitled to a presumption that he was prejudiced by the district court’s failure to afford him his right of allocution, which will satisfy the plain error rule’s third requirement, even if he received a sentence at the low end of his advisory guidelines range.”

United States v. Doyle, Case No. 14-12818 (May 25, 2017)

– Thomas L. Root


Some Legal Kibbles – Update for March 20, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

kibbles170320Today, we offer a few kibbles of legal interest that have been cluttering our dog pound for the last few days…


There is some indication that the Trump Administration may be expanding violent crime enforcement activities, a category which Attorney General Jeffrey Sessions believes must include gun and drug offenses. In keeping with the President’s fixation on violent crime, Sessions last week ordered United States Attorneys to work with with local and state prosecutors “to investigate, prosecute and deter the most violent offenders.”

Sessions’ directive said, “federal prosecutors should coordinate with state and local counterparts to identify the venue (federal or state) that best ensures an immediate and appropriate penalty for these violent offenders.”

Attorney General Jeffrey Sessions
Attorney General Jeffrey Sessions

In keeping with the new emphasis on violent crime, Sessions has appointed Steve Cook, chief of the Criminal Division for the U. S. Attorney’s Office for the Eastern District of Tennessee, and one of last year’s most vocal opponents of sentencing reform, as associate deputy attorney general with a mandate to focus on violent crime. Cook told a newspaper last year, “When you put criminals in jail, crime goes down. That’s what incapacitation is designed to do, and it works.” He called the idea that most offenders in federal prisons are nonviolent drug pushers is a myth.

violent160620Some critics the emphasis on violent crime as federal encroachment. “An expanded federal criminal justice agenda comprised of federal-state-local task forces targeting violent offenses and coupled with tougher federal sentences would be a substantial change in practice and a step in the wrong direction,” says Ryan King, senior fellow at the Urban Institute Justice Policy Center.

Tougher sentences could quickly reverse declines in BOP inmate population, especially in higher-level joints. According to a new Prison Policy Initiative report, 50% of the 189,000 federal prison inmates were convicted of drug offenses. Violent-crime convictions account for just 7% of the federal total.

The Crime Report, At ‘critical moment’ under Trump, report gives hard facts on incarceration (Mar. 14, 2017)

The Trace, Meet the hardliner Jeff Sessions picked to carry out his violent crime crackdown (Mar. 15, 2017)


The U.S. Sentencing Commission last week released its 21st annual Sourcebook of Federal Sentencing Statistics, covering fiscal year.

stats170320The current-year book is available online as an interactive book that defies downloading. It contains a wealth of sentencing stats broken down in over 100 tables (as well as sentencing date by federal district, another 97 tables).

Slogging through the Sourcebook takes awhile, but it yields a lot of fascinating data. Of special interest:

•   the number of cases ending with guilty pleas remained steady at 97%

•   offenses included 32% drug, 30% immigration, white-collar (including fraud) 13%, guns 11%, child porn 3%.

•   14% of people challenging their sentences on direct appeal won reversal, but only 5% ended up with a better sentence.

•  two out of three resentencings resulted from the 2-level reduction for drug offenses, Rule 35(b) reductions for helping the government were 11% of resentencings, and 10% were from wins on 2255 motions.

• continuing the pathetic performance on compassionate release, the courts granted a total of 51 inmates sentence reduction (a mere 0.4% of all resentencings).

•   in new sentencings last year, 49% were within the Guidelines range, a two-percent increase over last year. Only 2% of sentences were above the range, while 19% were below the range for reasons other than government motion. About 20% of sentences were reduced because the defendant helped the government, and another 9% were cut for early disposition of an immigration case.

U.S. Sentencing Commission, Sourcebook of Federal Sentencing Statistics 2016  (Mar. 12, 2017)


Like 97% of other federal defendants, Jim Kirkland made a deal with the government to plead guilty. In exchange, the government agreed to recommend the bottom of the guidelines range at sentencing.

But when Jim stood in front of the judge, the government went crazy on him, not just failing to recommend the bottom, but instead pushing for the very top, and bringing in live testimony of how terrible a few of his prior state crimes had been. The probation officer recommended the dead center of the sentencing range, and the judge gave it to him, saying that was what he had had in mind all along.

betray170320Jim’s sentencing lawyer must have been snoring too loudly to object, but on appeal, Jim raised the government’s plea breach. The AUSA admitted it was a plain breach, but argued the error did not affect Jim’s substantial rights or seriously affect “the fairness, integrity, or public reputation of judicial proceedings,” two of the standard Jim had to meet before proving F.R.Crim.P. 52(b) “plain error.” The government’s rationale was that the district judge said he said the 300-month midpoint sentence “frankly, happens to coincide with my own independent decision,” and that was sufficient evidence that the court would have imposed the same exact sentence even if the AUSA had recommended the bottom of the guidelines.

Last week, the 5th Circuit agreed with Jim. Clearly unhappy at the government’s breach of its promise, the Court said “the government did not merely recommend a high-end sentence but also strongly argued and presented testimony in support of that recommendation, recounting in great detail the graphic and… explicit facts involved in Kirkland’s offense of conviction and a prior offense and emphasizing his criminal history and his violation of the conditions of his supervised release. The testimony and argument by the Government filled more than nine pages of the sentencing transcript. Therefore, the district court may have been influenced not only by the Government’s recommendation, but also by Government’s passionate emphasis of aggravating factors in support of that recommendation, which brought public safety concerns to the forefront.”

When the government breaches a plea agreement, a defendant may either ask the court to order specific performance of the plea agreement and resentencing before a different judge, or withdrawal of the guilty plea. Jim asked for and got resentencing before a new judge.

United States v. Kirkland, Case No. 16-40255 (Mar. 17, 2017)

– Thomas L. Root