Tag Archives: plea agreement

Just Sign Right Below the Illusory Promise – Update for January 4, 2018

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


Jose Rivera-Cruz agreed to plead guilty to being a felon in possession of a gun. He signed a plea agreement in which the government (1) did not agree to reduce or dismiss any of charges, (2) reserved the right to argue for a statutory-maximum sentence, and (3) did not stipulate to a criminal history category of offense level. The plea agreement did permit Jose to argue for a 96-month sentence (a right he had with or without a plea agreement), and let the government argue for a statutory-maximum 120-month sentence (the most sentence Jose could get by law). However, the government did agree to recommend that Jose receive a 3-level acceptance of responsibility.

pleadeal180104After getting hammered with the full 120 months by the district judge, Jose argued on appeal that he should be allowed to get out of the plea agreement due to lack of consideration. Under basic contract law, both parties must give and receive consideration. If there is no consideration, the contract is not enforceable. Jose argued that just as Oz never did give nothing to the Tin Man that he didn’t already have, Jose got absolutely nothing under the plea agreement that he could not have gotten by pleading to the indictment without a plea agreement.

considerationLast week, the 1st Circuit disagreed. The appellate court held the plea agreement provided Jose with “at least three separate benefits, each of which independently constituted sufficient consideration.” First, the government agreed to move for the third acceptance-of-responsibility point under USSG 3E1.1(a), something it did not have to do because Jose refused to plead guilty until the eve of trial. The Circuit said the fact the 3-level reduction did not help him at sentencing made no difference: “the government’s voluntary agreement to submit the same three-point reduction, rather than a two-point reduction, certainly gave Rivera-Cruz a better ‘chance at less’ in front of the district court.”

tinman180104Second, the government agreed not to seek a 4-point obliterated-serial-number enhancement under USSC 2K2.1(b)(4)(B). The Presentence Report included the enhancement anyway, and Jose complained the government did not fight it, but the Court said the AUSA had no “affirmative obligation… to object to the enhancement at sentencing. In any case, the government’s voluntary agreement not to include the… enhancement in the plea agreement improved Rivera-Cruz’s chances of obtaining a more lenient sentence, and accordingly constituted sufficient consideration for his plea.”

Finally, the government agreed not to seek a 15-year mandatory minimum Armed Career Criminal Act sentence. Jose argued on appeal that the promise was meaningless, because he never would have qualified for an ACCA sentence. The 1st Circuit said that did not matter: “the government was under no obligation to drop its pursuit of an ACCA sentence. Its decision to do so in the plea agreement… provided Rivera-Cruz with a ‘chance at less’ during sentencing,” whether that chance was meaningful or not.

United States v. Rivera-Cruz, Case No. 16-2398 (1st Cir., Dec. 22, 2017)

– Thomas L. Root


You Can Love Your Lawyer Too Much – Update for August 9, 2017

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


defiance170811There’s an old legal joke about the difference between an attorney and a rooster. The punch line goes something like “A rooster clucks defiance.

Putting some meat on those bones is New York attorney Harvey Slovis. Harv represented Oksana Romalis, a school teacher caught up in a multi-defendant scam to rip off the Conference on Jewish Material Claims Against Germany. The Conference is a not-for-profit organization that supervises and administers several funds that make reparation payments to victims of Nazi Germany, distributing hundreds of millions of dollars annually in direct payments to tens of thousands of victims in 80 countries and territories. The government alleged that Oksana and others recruited people who lived at about the right time to be victims, and engineered phony applications for compensation. The head of one of the Conference funds would then approve the bogus claims in exchange for a cut of the payment. The decade-long fraud stung the Conference for over $57 million.

Only three of the 31 defendants went to trial. Oksana was one of them. In a post-conviction petition she filed under 28 USC 2255, Oksana claimed that her lawyer was ineffective for not telling her that she could get the 46-month sentence she ended up with, which was her reason for rejecting a government offer of a 21-27 month sentencing range.

Last week, the district court rejected Oksana’s ineffective assistance claim, holding that a lawyer’s failure to accurately predict that her sentencing range might start 10 months above the sentencing range offered by the government was not a big enough difference to show that she was prejudiced by counsel’s overly-rosy predictions that she could win at trial.

lovelawyerB170811But the more interesting allegation Oksana made, rejected by the court, was that she and “and Slovis were involved in a relationship, ‘frequently went on dates together, and became intimate’.” The court noted that “in text messages between the two, Slovis and Romalis expressed affection for each other and often used terms of endearment. Romalis says that her decision to reject the Government’s plea offer was based on her intimate relationship with Slovis. Romalis also speculates that “Slovis was motivated by romance and money,” and “was stringing her along in order to prolong their relationship.”

The district court was unimpressed. To be sure, a defendant’s 6th Amendment right to effective assistance of counsel includes the right to representation by conflict-free counsel. But conflict-free counsel does not necessarily mean that the 6th Amendment enforces the canons of legal ethics. The court said, “the existence of an intimate relationship between a defendant and counsel may not always amount to a conflict of interest, even if it violates the code of professional ethics.”

lawyerlove170811Here, Oksana was obligated to prove that her affair with Harvey either adversely affected his performance or otherwise prejudiced her interests. Oksana speculates that Harvey improperly advised her in conjunction with the plea offers because he wanted to continue their relationship as long as possible. However, the district court held, Oksana had to “provide more than that to demonstrate that Slovis’s performance was adversely affected by his relationship with her.” At sentencing, Oksana tried to convince the court she had only gone to trial instead of pleading guilty because she knew that if she was convicted, she would lose her teaching license. That assertion came back to bite her. The court didn’t buy her 2255 claims that Harv had advised her wrong on plea offers because she was his “squeeze.” Instead, the court held Oksana to her prior claim she had rejected the offers because she hoped to win at trial and keep her teaching certificate.

Sec. 2255 directs a district court judge to consider a defendant’s claims in light of the entire record of the trial and post-conviction proceeding. That’s what the judge did here, much to Oksana’s chagrin.

Harv is probably not out of the woods. Most jurisdictions have rules of professional conduct that prohibit a lawyer sleeping with a client, which is enshrined in American Bar Association Model Rule of Professional Conduct 1.8(j). We at least hope that Harvey didn’t bill Oksana for the time they spent horizontally. It’s happened before.

Romalis v. United States, Case No. 1:11-cr-00120 (S.D.N.Y. Aug. 4, 2017)

– Thomas L. Root


Some Short Notes from D.C. – Update for August 7, 2017

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


The D.C. Circuit handed down a pair of rulings last Friday. One, the reversal of sentences (and in one case, a conviction) for four Blackwater contractors over a 2007 Baghdad massacre, was widely reported. The other, a case about prisoners’ waivers of FOIA rights, flew under the radar. Both are of significance to federal inmates.



carriefgun170807The big news from the D.C. Circuit last Friday was the reversal of sentences for four Blackwater private security contractors who massacred 14 civilians after they mistakenly thought they were under attack on a Baghdad street. Buried in that decision is a holding of interest to federal prisoners with 18 USC 924(c) convictions, especially where those counts are stacked to result in horrendous sentences.

The contractors were armed with government-issued M4 rifles, which of course can be set to fire fully automatically. Because of that, each of the defendants – found guilty of committing a crime of violence with a gun – got a mandatory sentence of 30 years because the weapon was a machine gun.

Apparently, hanging the 924(c) machinegun sentence on the defendants was contentious, even in the Justice Department. The D.C. Circuit agreed, ruling that applying the mandatory 30-year sentence to the contractors – based “solely on the type of weapons… used – violated the 8th Amendment’s prohibition against cruel and unusual punishment.

In its opinion, the Circuit tried mightily to limit the decision to the facts of the case: It notes the firearms were a type required by the government, the contractors all had prior unblemished military records and no other convictions, it was a war zone where snap judgment was the difference between life and death, the contractors did not choose to be on that street corner, but were ordered there by their commander, and they did not set out that day to blow away civilians. The Court also noted that when 924(c) was last amended, the concept of private contractors protecting U.S. diplomats was not envisioned.

overkill170807“Combining all of these considerations,” the appellate court said, “we conclude the mandatory 30-year sentences create the rare case that leads to an inference of gross disproportionality… None of the penological justifications our society relies upon when sentencing criminals — incapacitation, rehabilitation, retribution, or deterrence — are properly served here by a sentence whose length is determined solely based on the type of weapon used during the crime.”

The Blackwater case has a rare set of facts, and run-of-the-mill defendants – who, for example, use a submachine gun to rob a bank – are unlikely to get much love from the holding. However, now the 8th Amendment camel’s nose is inside the tent. It will be interesting to see whether 8th Amendment claims become a staple of 924(c) defense elsewhere in the country.

United States v. Slatten, Case No. 15-3078 (D.C.Cir., Aug. 4, 2017)



The government often demands, as a price for plea agreements, that defendants waive their right to pursue Freedom of Information Act requests.

Last Friday, the D.C. Circuit outlawed the practice, holding that the FOIA waiver is unconnected to any “legitimate criminal justice interest” and is void as a matter of public policy.

foia160930The Court said a “prosecutor is permitted to consider only legitimate criminal justice concerns in striking a plea bargain—concerns such as rehabilitation, allocation of criminal justice resources, the strength of the evidence against the defendant, and the extent of a defendant’s cooperation with the authorities… This set of legitimate interests places boundaries on the rights that can be bargained away in plea negotiations.”

While banning FOIA suits “may occasionally promote the government’s legitimate interest in finality,” the Circuit said, “they only do so by making it more difficult for criminal defendants to uncover exculpatory information or material showing that their counsel provided ineffective assistance. That argument takes the finality interest too far. After all, a defendant can never waive his right to bring a colorable claim of ineffective assistance of counsel, even though such claims undermine finality… FOIA plays a significant role in uncovering undisclosed Brady material and evidence of ineffective assistance of counsel, and in practice has led to uncovering records relevant to ineffective-assistance-of-counsel claims, such as plea offers not communicated by defense counsel to clients.”

Price v. Dept. of Justice Attorney Office, Case No. 15-5312 (D.C.Cir., Aug. 4, 2017)

– Thomas L. Root


6th Circuit Cautious on Plea Agreement Waiver in Wake of Lee – Update for Tuesday, July 18, 2017

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


pleadeal161116Plea agreements are a way of life in the federal criminal system. About 97.5% of federal criminal convictions are obtained through guilty pleas, and all but a handful of guilty pleas result from a written plea agreement between the government and defendant.

Surprisingly, there is little uniformity in plea agreements among the 94 federal judicial districts. The U.S. Attorney’s Manual provides some guidance to federal prosecutors, but the form of the agreements varies widely from district to district.

Generally, the Manual states, the government lawyers are permitted to ask defendants, as a condition of entering into a plea agreement, to waive “appeal and… post -conviction remedies to the full extent permitted by law as a component of plea discussions and agreements.”

remorse170718It’s safe to say that the overwhelming majority of federal criminal defendants will sign and later benefit from a written plea agreement (although in many cases, the benefits of the plea agreement can be illusory, which is a discussion for another day). It’s almost as safe to say that almost all of those defendants will experience buyer’s remorse at some point, usually after they hear the prison door slam shut behind them.

That happened to Hatem Ataya, a Michigan physician who pled guilty to a Medicare fraud scheme in 2015. His plea agreement included an appellate waiver, in which he gave up any right to appeal his conviction or sentence “on any grounds.” Doc Ataya appealed anyway, and the government moved to dismiss the appeal on the basis of the waiver.

waiver170718Defendants appeal against the waiver all the time, and the government’s normal response is to seek dismissal of the appeal on the basis of the waiver. In 2016, about 18% of all criminal appeals were bounced on procedural grounds, and most of those were because of valid appeal waivers. But it does not always work this way. In a notable 3rd Circuit outlier decision, the government won the right to resentence a defendant who filed an appeal despite his waiver, under the dubious theory that he had breached the plea agreement by appealing. Given the less-than-user-friendly Justice Department, under the leadership of Jefferson Beauregard Sessions III, watch for more of these vindictive resentencings.

Doc Ataya, however, might be lucky. He claimed that his appeal waiver was not valid, because the court did not inform him of some of the consequences of his plea, including deportation to a hotter, drier place. There’s a rule for a district court to follow when accepting plea deals – F.R.Crim.P. 11 – and in this case, Dr. Ataya argued, the district court missed an important step.

Earlier this week, the 6th Circuit agreed. Holding that it was “not convinced that Ataya entered into the plea agreement as a whole knowingly and voluntarily,” the Circuit referred the case for decision on the merits to “determine whether the plea agreement and the district court adequately informed Ataya of his plea’s consequences, in particular any possibility of denaturalization…”

The 5th Amendment requires that waivers of constitutional rights – such as the right to trial or appeal – must be given knowingly and voluntarily. There was no question Dr. Ataya knowingly waived his appellate rights. “But,” the appellate panel said, “appellate waivers are parts of larger contracts, and they must stand or fall with the agreements of which they are a part… A defendant decides to waive the right to challenge his conviction in light of his understanding of the conviction’s key consequences. If he misunderstands any of those consequences, that undermines the knowingness of the appellate waiver.”

During the hearing at which Dr. Ataya’s guilty plea was taken, the district court did not inform him that the plea agreement required him to pay restitution and a special assessment and to forfeit the fraud proceeds. Rule 11(b)(1)(J)–(L) requires that the defendant be told this. “Perhaps more troublingly,” the Circuit said, “neither the plea agreement nor the district court seems to have mentioned that Ataya, who became a naturalized citizen after the alleged frauds, might face denaturalization as a result of his conviction.”

idontknow170718One might wonder at this. The defendant held advanced degrees and was an M.D. Plus, he had no fewer than three privately-retained attorneys representing him at trial. It taxes credulity to believe that he walked into the plea agreement not understanding there might be a fine, would definitely be a special assessment ($200.00, about what he’d collect for two office visits from patients), and that he could be deported. But it doesn’t matter if the defendant is represented by David Bois and Neal Katyal. He has to hear it from the court. Because he did not, the Circuit allowed, “it is thus quite possible that Ataya did not grasp some of the consequences of his plea.”

But one good technicality begets another. Sure, the district court failed to “comply with Rule 11(b)’s requirements to a T.” But Dr. Ataya’s lawyers never objected to the error. If they had, of course, the district court would have fixed the mistake right away, so maybe their reticence is understandable. But there’s a catch: without a contemporaneous objection, Dr. Ataya has to do more than show that the district court goofed. He has to show F.R.Crim.P. 52(b) “plain error” on appeal. That requires him to demonstrate “a reasonable probability that, but for the error, he would not have entered the plea.”

That should prove to be a pretty tall order, although he does have the Supreme Court’s recent decision in Lee v. United States to fall back on. Indeed, that may be the reason for the 6th Circuit’s caution (despite the fact the Ataya decision does not mention Lee).

Because that question had not been raised by either the Doc or the government, the 6th Circuit ordered the parties to brief the issue for argument before another panel of the court.

United States v. Ataya, Case No. 16-2611 (6th Circuit, July 17, 2017)

– Thomas L. Root


Judge Has Enough of Expedient Pleas – Update for July 10, 2017

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


Charles Walker, a drug trafficking defendant, cut a plea deal to cop to a single count of distributing heroin, getting five other counts – including one for peddling fentanyl – dismissed.

But when the plea agreement was presented to U.S. District Judge Joseph Goodwin, he did something neither the prosecutor nor defense counsel planned on. He turned them down flat.

In a 28-page order, the judge said one of the chief reasons Chuck should face the “bright light of the jury trial” is because West Virginia is “ground zero” for the opioid epidemic that has been ravaging the nation. “A court should consider the cultural context surrounding the subject’s criminal conduct,” the Judge wrote. “Here, that cultural context is a rural state deeply wounded by and suffering from a plague of heroin and opioid addiction.”

The Judge said a jury trial “reveals the dark details of drug distribution, an abuse to the community, in a way that a plea-bargained guilty plea cannot. A jury trial tells a story… The secrecy surrounding plea bargains in heroin and opioid cases frequently undermines respect for the law and deterrence of crime.” The decision found that the plea deal offered Walker has little to do with justice. “The principal motivation appears to be convenience.”

Chuck’s attorney told the Washington Post, “This is the first time anything like this has happened in 25 years of practicing law.”

AUSAnumber170710An interesting footnote to the decision is Judge Goodwin’s skewering of the tired rationale that plea bargains are necessary to relieve the overburdened court and prosecutorial systems, which would grind to a halt were it not for deals like the one the government sought to give Charles Walker:

For at least the past forty-six years, the primary justification for plea bargaining has been that the constitutional process of requiring trial by jury in every case overburdens the courts and overworks the prosecutors… The courts are no longer overburdened. Federal prosecutors are no longer overworked. To illustrate, despite the decline in criminal trials, the number of federal prosecutors has… increased more than sevenfold—from 809 in 1970 to 6,075 in 2010. In FY 2016, the number of federal prosecutors had grown to 6,293. 

Given the inverse relationship between trials and federal prosecutors, there has been a steady decrease in the average number of criminal trials handled per federal prosecutor. In FY 1973, each federal prosecutor handled over eight criminal trials on average. By FY 2016, the average number of criminal trials handled by each federal prosecutor plummeted to 0.29 trials.

Like federal prosecutors, the number of authorized Article III district court judgeships rose from 394 in 1970 to 663 in 2015.103 Accordingly, the number of criminal trials handled per district judgeship dropped from over twenty-one per year in 1973 to fewer than three per year in 2016. Thus, like federal prosecutors, district court judges are not overburdened by trials.

Because the most common justifications for plea bargaining no longer have any substantial heft, the counterweight of the people’s general interest in observing and participating in their government requires close consideration of a proffered plea bargain in every case.

United States v. Walker, Case No. 2:17-cr-0010 (S.D.W.Va., June 26, 2017)

– Thomas L. Root


Defendant Who Could Not Win at Trial Can Still Argue Bad Plea Advice – Second Update for June 23, 2017

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


If a post-conviction petitioner argues in a 28 USC 2255 motion that he or she would never have taken a plea deal if defense counsel had done a competent job of explaining it, the courts have held that the prisoner must show (1) the advice was deficient (either bad or missing altogether); and (2) but for the bad representation, he or she would have rejected the plea and gone to trial. This is the Hill v. Lockhart test, from a 1985 Supreme Court decision.

pleading170502A prisoner might have a lot of reasons for going to trial that have nothing to do with whether he or she can win. But over the years, the government has convinced courts that if the petitioner had no reasonable chance of winning at trial, he or she cannot prove that but for the lousy advice, he or she would have rolled the dice with a jury.

Korean-American restaurant owner Jae Lee was in that boat. Jae had moved to the United States from South Korea with his parents when he was 13. In the 35 years he spent in this country, Jae has never returned to South Korea, but neither had he become a U. S. citizen, living instead as a lawful permanent resident.

In 2008, federal law enforcement found drugs, cash, and a loaded rifle in Jae Lee’s house. Jae admitted that the drugs were his, and a grand jury indicted him. His attorney talked pleas with the Government. During the plea process, Jae repeatedly asked his attorney whether he would face deportation; his attorney assured him that he would not be deported as a result of pleading guilty. Based on that assurance, Lee accepted a plea and was sentenced to a year and a day in prison.

plea161116The attorney was dead wrong. Jae was subject to mandatory deportation as a result of the plea. When Jae learned of this consequence, he filed a 2255 motion, arguing that his attorney had provided constitutionally ineffective assistance. At an evidentiary hearing, both Jae and his lawyer testified that “deportation was the determinative issue” to Jae in deciding whether to accept a plea. The attorney acknowledged that although Jae’s defense to the drug charge was really weak, if he had known Jae would be deported upon pleading guilty, he would have advised him to go to trial anyway.

The district court denied the 2255, holding that while Jae Lee’s counsel had performed deficiently, Jae could not show that he was prejudiced by his attorney’s erroneous advice. The 6th Circuit agreed.

Today, the Supreme Court reversed, 6-2, in a substantial victory for Jae. The Supremes noted that the basic rule since Hill v. Lockhart has been that when a defendant claims his counsel’s deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a “reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”

The problem with Government’s per se rule that a defendant without a viable defense cannot show prejudice from the denial of his right to trial, Chief Justice Roberts wrote, is that “categorical rules are ill suited to an inquiry that demands a case-by-case examination of the totality of the evidence.” What’s more, the Government overlooks that the Hill v. Lockhart inquiry focuses on a defendant’s decisionmaking, which may not turn solely on the likelihood of conviction after trial.

hailmary170613The Court said the decision whether to plead guilty involves assessing the respective consequences of a conviction after trial and by plea. When those consequences are, from the defendant’s perspective, similarly dire, even the smallest chance of success at trial may look attractive. For Jae, deportation after some time in prison was not meaningfully different from deportation after somewhat less time; he says he accordingly would have rejected any plea leading to deportation in favor of throwing a “Hail Mary” at trial.

The Government argued that “a defendant has no entitlement to the luck of a lawless decisionmaker,” quoting Strickland v. Washington. The Court said that the “lawless” quote was made in the context of discussing the presumption of reliability applied to judicial proceedings, which has no place where, as here, a defendant was deprived of a proceeding altogether. When the inquiry is focused on what an individual defendant would have done, the possibility of even a highly improbable result may be pertinent.

The Supreme Court said that district courts should not upset a plea solely because of after-the-fact assertions by a defendant about how he would have pleaded but for his attorney’s deficiencies. Rather, they should look to contemporaneous evidence to substantiate a defendant’s expressed preferences. Here, Jae has adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.

The Government argued that Lee cannot “convince the court that a decision to reject the plea bargain would have been rational under the circumstances, since deportation would almost certainly result from a trial. But the Chief Justice was not willing to let courts decide that “that it would be irrational for some-one in Lee’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.”

We think this decision will have a significant effect on 2255 petitioners seeking to set aside an incompetently-advised plea.

Lee v. United States, Case No. 16-327

– Thomas L. Root



You Pay Your Money and You Take Your Chance – Update for May 2, 2017

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


With 97% of federal defendants entering guilty pleas, you’d think that law students aspiring to federal criminal defense work (that is, if any law student actually selects that as a career option) would take classes in plea negotiation even before studying evidence, criminal procedure or appellate advocacy.

pasdedeux170502To be sure, plea agreement negotiation is an art form, sort of akin to detailed choreography that has great implications for defendants, implications often never fully appreciated until much later. The change-of-plea hearing itself is a pas-de-deux for defendant and judge, with almost every question being scripted by Rule 11(b) of the Federal Rules of Criminal Procedure – and almost every answer being a trap for the unwary.

It’s little wonder the Supreme Court has held that the 6th Amendment’s right to effective legal counsel extends to negotiating and signing the plea agreement.

Gilbert Spiller was a man without a lot of choices. He was busted in Chicago for selling 121 grams of crack to a police informant, and then compounding his miscalculation by later selling the same guy a loaded .40 caliber pistol so the buyer – a convicted felon – could use it to protect his own drug trafficking operation. Gil was sort of a poster boy for what’s wrong with the Windy City.

Gil, a man with three prior drug felonies, was pretty much in a corner. The federal drug trafficking statute – 21 USC 841 – is a spaghetti bowl of “if-thens.” If the amount of drugs sold exceed x, then the minimum sentence becomes y. If the defendant has x number of prior drug felonies, then the minimum sentence is y, but if the number of prior felonies is x+1, then the minimum sentence is 2y. If death or serious injury resulted from the drug sales, then the minimum sentence is z. In Gil’s case, the amount of drugs he sold would have given him a mandatory minimum sentence of five years, but his prior felonies bumped it to double that.

pleading170502When the government intends to enhance a 21 USC 841 sentence, it has to provide a notice complying with 21 USC 851. In defendant parlance, someone receiving such an enhanced sentence has been “851’d.” Gil got 851’d right away, even before the government’s plea offer arrived on his lawyer’s email.

The government proposed that Gil would plead to a drug distribution count, and admit that the conduct underlying the remaining counts was relevant for sentencing purposes. He also had to stipulate to the government’s Guidelines calculation, including a Guidelines “career offender” enhancement that would send the sentencing range into the stratosphere.

Gil’s defense attorney was puzzled by the offer. Gil would be giving up his right to appeal or argue Guidelines enhancements at sentencing, and for what? We see this in many plea agreements: the defendant give up rights in exchange for vapor, getting nothing that he could not have gotten simply by pleading guilty without the agreement (called a “blind plea”). After all, a defendant does not have to have an agreement in order to plead guilty, and sometimes, no plea agreement might be a wise idea.

Gil clearly wondered what was in the deal for him, as did his attorney. She wrote back:

Mr. Spiller has asked a great question and one that I cannot seem to answer for him: what exactly does he gain if he proceeds by plea agreement, as opposed to a blind plea. Is the government withdrawing the 851? Can you tell me one concession the government makes in the draft plea you sent over? I want to make sure I am not missing something.

In an uncharacteristic flash of candor, the Assistant U.S. Attorney responded:

The government is not withdrawing the 851 notice. You ask a good question, and I admit that the plea agreement does not offer a whole lot beyond a blind plea. There are a few minor benefits: we would dismiss two counts so he would save himself $200 in special assessments. He also gets the recognition in the plea agreement that, as things currently stand, he is entitled to acceptance of responsibility.

forme170502Gil rejected the government’s proposed plea agreement and instead entered a blind plea, pleading guilty to all three counts and reserving his right to argue his sentence and appeal. His sentencing range was 262-327 months. At sentencing, his lawyer pointed to his troubled upbringing, asking for 120 months. The court sentenced Gil to 240 months.

Once ensconced in prison, Gil became afflicted with buyer’s remorse. He filed a 28 USC 2255 motion, arguing his lawyer had been constitutionally ineffective by counseling him to execute a blind plea rather than taking the government’s proposed plea agreement. The district court denied the motion.

Last week, the 7th Circuit upheld the denial. To win, Gil had to show his lawyer’s performance fell below an objective standard of reasonableness, and that there was a reasonable chance that, but for those errors, his sentence would have been different.

The Circuit said that a reasonably competent lawyer would have tried to learn all of the relevant facts of the case, make an estimate of a likely sentence, and communicate the results of that analysis to the client before allowing him to plead guilty. That, the Court said, was just what Gil’s lawyer did. She discussed the proposed plea agreement with him and conveyed Gil’s questions (and hers) to the government. She concluded that Gil would be better off rejecting the offer and pleading blindly.

remorse170502In fact, she went one better that most attorneys. She drafted an 11-page plea declaration illustrating the understanding of the relevant facts and law underlying the case that she and Gil had reached, which she had Gil sign. In the document, which was filed with the district court, Gil acknowledged he had read the indictment and the document he was signing, and had gone over the whole thing with his attorney. (This, in our experience, is an unusual but prudent practice: it both ensures the defendant knows what is happening and protects the lawyer from “buyer’s remorse” proceedings such as Gil’s 2255 motion).

Gil admitted in his 2255 motion that his attorney believed it was worth it to reserve his right to challenge the government’s Guidelines calculation — a right he would have sacrificed by signing the plea agreement — and believed she could get him a “better sentence.” The Court said her decision “sounds in strategy rather than in emotion, and a strategic decision, even if clearly wrong in retrospect, cannot sup-port a claim that counsel’s conduct was deficient.”

endof170502The Circuit observed that a “fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to re-construct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” This is especially true in the plea-bargaining context, the Court said, citing “the many uncertain-ties surrounding the difficult decision of whether to plead guilty.”

The 7th concluded that the district court had “a sufficient basis in the record to characterize counsel’s decision as strategic: Her email, Spiller’s affidavit, the government’s proposed plea agreement, and Spiller’s Plea Declaration, taken together, obviated the need for an evidentiary hearing.”

Spiller v. United States, Case No. 15-2889 (7th Cir., Apr. 28, 2017)

– Thomas L. Root


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

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



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


What’s in a Name? – Update for February 24, 2017

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


Bruce Swisshelm signed a plea agreement to resolve his bank fraud indictment. It included the fairly Government promise not to argue for a sentence above the top of the Guideline range, and the defendant would not argue for a sentence below the bottom.

rose170224Bruce’s sentencing range was 57-71 months, but his attorney vigorously argued for a downward variance and bombarded the court with letters from the community attesting to the fact that Bruce was a great guy. The Government objected to her tactics, arguing that defense counsel’s arguments and the letters violated the plea agreement. Bruce’s lawyer disagreed, saying the agreement only prohibited her from arguing for a downward departure, and all she was asking for was a variance.

Variance, departure? A difference, is it not? Bruce’s attorney was undoubtedly emulating Renaissance lawyer Juliet, who once argued, “What’s in a name? That which we call a rose, By any other name would smell as sweet.” And there is little doubt the judge found her arguments as sweet as a rose: despite the 57-71 month Guidelines range and the terms of the plea agreement, the court sentenced Bruce to 12 months and a day.

The Government appealed, arguing in essence, “Lord, what fools these mortals be” if they think they did not breach the plea agreement. Earlier this week, the 8th Circuit agreed.

Defense counsel just wanted the court to picture her client in the best possible light.
          Defense counsel just wanted the court to picture her client in the best possible light.

The Court of Appeals admitted that there are a lot of case out there holding  what’s to be done when the Government breaches a plea agreement, but that it had never decided the appropriate remedy when the defendant violates the deal. The Court said, “We do not now decide the proper remedy for any future defendant’s breach of a plea agreement, but in the particular circumstances of this case we decline to treat Swisshelm’s breach of the plea agreement differently from a breach by the government.”

A governmental breach of a plea deal always carries with it constitutional due process concerns. Those concerns are not present in where the breaching party is the defendant, but “principles of contract interpretation” nevertheless causes the Court to hold Bruce “accountable to the terms of the plea agreement. The parties agreed that they would not request a sentence outside the Guidelines range, and the government agreed not to pursue the several additional charges and Guidelines enhancements it could have lodged against Swisshelm in return for his guilty plea… Swisshelm thus received the benefit of the plea agreement—the government’s forbearance from seeking an above-Guidelines sentence—but deprived the government of its corresponding bargained-for benefit—Swisshelm’s forbearance from seeking a below-Guidelines sentence. “

Defense attorneys know that some clients just can't be prettied up at sentencing, no matter how hard one tries...
     Defense attorneys know that some clients just can’t be prettied up at sentencing, no matter how hard one tries…

The Court ordered resentencing in front of a different judge, which is precisely the remedy Bruce would have gotten if the Government had breached. Bruce – who had to think he had a real soft-touch sitting on the bench – complained that a different judge was hardly necessary and that his breach had been harmless. Doing the math, the 8th figured that a decrease in sentence from 57 months to 12 months was quote material. It said the different judge “may in the exercise of discretion consider the letters submitted on Swisshelm’s behalf for the purpose of determining a sentence within the Guidelines range, but not for the purpose of considering a downward departure or variance from the Guidelines range.”

The Court noted that appointment of a new judge in cases like this is standard, and was “in no sense to question the fairness of the sentencing judge; the fault here rests on the defendant, not on the sentencing judge.”

Bruce can’t be thinking that “All’s well that ends well.” He’s already served his 12-month sentence, and was just released last month. He’s now looking to going back for another 45 months, at least.

United States v. Swisshelm, Case No. 16-1416 (8th Circuit, February 22, 2017)

 – Thomas L. Root