Wednesday, May 24, 2006

Government May Withdraw Rule 35(b) Motion

US v. Hartwell: Hartwell pleaded guilty to an information charging him with "murder-for-hire resulting in death" (as opposed to murder-for-hire that doesn't result in death?). As part of the plea agreement, he agreed to cooperate with the Government in other cases, while the Government agreed not to seek the death penalty and possibly seek reduction of Hartwell's sentence under Rule 35(b). Hartwell entered his plea, was sentenced to life in prison, and filed no appeal.

A year later, the Government filed a "placeholder" 35(b) motion to toll the running of the statue of limitations for sentence reductions. The Government and Hartwell agreed to have the district court delay acting on the motion until cooperation was complete. Hartwell agreed that if he failed to live up to his responsibilities under the plea agreement, the Government could withdraw its motion. A year and a half later, at the urging of the district court, the Government filed a memorandum outlining Hartwell's troubled assistance to date (he admittedly perjured himself) and hopes for further cooperation. The Government recommended a sentence reduction to 38 years in prison. A few months later, Hartwell filed a motion with an attached affidavit in which he claimed that the Government has agreed, at the time of his plea, to a reduction to an 18-year sentence. The Government responded by saying that such a promise was never made and sought to withdraw the 35(b) motion. The district court granted the Government's motion to withdraw.

Hartwell appealed. After concluding that it did have jurisdiction to review the case, the Fourth Circuit rejected Hartwell's argument. First, it rejected the argument that the district court had no subject-matter jurisdiction over his case because he was charged in an information, rather than indictment, for a capital crime. Second, the court rejected Hartwell's argument that once the Government filed its Rule 35(b) motion it could not withdraw it. Finally, the court rejected Hartwell's argument that the district court should have held an evidentiary hearing prior to dismissing the Rule 35(b) motion. Judge Williams concurred, but argued that Hartwell waived the information argument by not making it at the time of his plea.

Summaries of All Published Fourth Circuit Criminal Cases Issued in the Last Six Months

Diana Cap and Vidalia Patterson of the Federal Public Defender's Office for the Eastern District of North Carolina have prepared an update summarizing all the published criminal cases issued by the Fourth Circuit between October 2005 and April 2006. The summaries are organized by issue and offense-type and contain up-to-date case cites. This update, which is available here, gives a great overview of what the Court has been up to over the last half year.

Fran Pratt and Sarah Gannett of the Federal Defender's Offices in Eastern Virginia and Maryland respectively have produced a more specialized and detailed summary of the Fourth Circuit's post-Booker sentencing decisions.

Tuesday, May 16, 2006

Alternate Sentence Cures Sixth Amendment Violation (Again)

US v. Shatley: Shatley pleaded guilty to vote buying and conspiracy to buy votes in connection with a North Carolina sheriff's race. At his pre-Booker sentencing, his offense level was enhanced after the district court concluded that he was a leader in the vote buying scheme and that he obstructed justice. As a result, his Guideline range jumped from 10 to 16 months to 27 to 33 months. The district court imposed a sentence of 33 months. Following the Fourth's recommendation in Hammoud, the district court imposed an alternate sentence of 33 months as well.

Shatley appealed, arguing that this sentence violated the merits portion of Booker and could not be salvaged by the imposition of an alternate sentence. This was a direct application of the court's decision in Revels from two weeks ago (why it merited a published opinion is beyond me). While the Guideline sentence imposed by the district court violated Booker, the 33-month alternate sentence did not, as the district court had "presciently followed" the procedure for post-Booker sentencing set forth in Hughes to arrive at the alternate sentence. As the court concluded:
it is not the length of the sentence that offends the Sixth Amendment, but rather the process used to determine its length. If the jury had found the facts used to justify the 33-month sentence, Shatley surely would have no complaint [surely not! - JDB]. Similarly, if the sentence range was determined pursuant to facts found by the district court but the Sentencing Guidelines were taken only as advisory, Shatley could have no complaint as long as the sentence was entered under 3553(a).
And so it goes.

Wednesday, May 10, 2006

Judge Luttig Resigns

In a development that I don't think anyone expected, Judge J. Michael Luttig has resigned from the Fourth Circuit, effective immediately, to take a job with Boeing Corp. Judge Luttig was an intellectual force on the Court and was one of the reasons the Fourth Circuit deserves its reputation as one of the most conservative courts in the country. It will be interesting to see how his absence affects the Court. If nothing else, I'm sure there are a few defense lawyers who will sleep a little easier knowing they no longer face the prospect of a Judge Luttig grilling at oral argument. A copy of his resignation letter can be found here.

Tuesday, May 09, 2006

Convictions Sustained When 17 Years Old Are "Adult" Convictions for Career Offender Determination

US v. Allen: Allen pleaded guilty to conspiracy to distribute crack and was sentenced as a career offender. Allen objected to the career offender determination, arguing that he did not have the requisite number of prior felonies. Specifically, he argued that three convictions for distribution of cocaine sustained in 1995 in North Carolina when he was 17 were not "adult convictions" and the three consecutive six-to-eight month sentences imposed for those offenses could not be aggregated into a single felony conviction for career offender purposes. On appeal, Allen also argued that his sentence violated Booker.

The Fourth Circuit affirmed Allen's sentence. The court held that Allen's 1995 convictions were supported a career offender determination, for two reasons. First, those convictions were "adult" convictions. Because they were entered in the Superior Court of North Carolina rather than the District Court and only District Courts have jurisdiction over juvenile proceedings, Allen must have been treated as an adult for purposes of his 1995 convictions.

Second, the 1995 convictions were felonies as defined by USSG 4B1.2. Allen argued that the 1995 convictions, sustained when he was 17, could only be considered based on the sentences actually imposed (6-8 months) rather than potential sentence (30 months) under Application Note 7 of USSG 4A1.2 ("for offenses committed prior to age eighteen, only those that resulted in adult sentence of imprisonment exceeding one year and one month are counted"). The court rejected that argument, distinguishing US v. Bacon, 94 F.3d 158 (4th Cir. 1996), and US v. Mason, 284 F.3d 555 (4th Cir. 2002), which held that it was proper to look to the definitions in 4A1.2 when determining career offender status. The court held that there was no need to resort to 4A1.2 in this case because 4B1.2 was clear that qualification for career offender status is based on the maximum sentence that could have been imposed for the offense, rather than the sentence actually imposed. Thus, there was no reason to consult 4A1.2.

The court also rejected Allen's Booker argument, holding that his sentence was not plainly erroneous. The court did conclude that it was error and the error was plain for the district court to consider the proffer of the Government as to what a probation officer would testify to regarding the prior convictions. Specifically, the probation officer spoke with officials in North Carolina who confirmed that Allen's 1995 convictions were treated as adult proceedings. Reliance on such information, the court held, violated Shepard v. US, 544 U.S. 13 (2005), and US v. Washington, 404 F.3d 834 (4th Cir. 2005). However, because the plea documents themselves showed that the 1995 convictions were in adult proceedings, the err did not affect Allen's substantial rights. The court also concluded that Allen did not show that the district court would have imposed a different sentence under a post-Booker advisory Guideline scheme to support remand for resentencing under White.

Tuesday, May 02, 2006

Couple of Thoughts on Johnson and Presumptive Reasonableness

In United States v. Johnson, the Fourth Circuit reiterated and expanded on its earlier holding in Green that, post-Booker, the sentencing range called for by the Sentencing Guidelines must considered presumptively reasonable. This is bad for any number of reasons. Just a couple off the top of my head:

(1) Reinforces the erroneous notion that the Guidelines are entitled to special weight rather than simply being one factor among many as 18 U.S.C. 3553(a) clearly provides;

(2) Creates the impression, probably accurate, that the Guidelines are a safe harbor for the district courts; in other words, sentences within the guideline range will be subject to less rigorous review on appeal;

(3) Makes the Guideline sentence the reference point for judging the reasonableness of any sentence outside the range; that is, the probability that a sentence will be judged "unreasonable" increases exponentially with the extent of its variance from the advisory guideline range; the Fourth Circuit is where big variances go to die.

The overall effect of Johnson is to ensure that the Guidelines remain the 800 lb. gorilla of federal sentencing. Indeed, it can be argued that Johnson re-elevates the Guidelines uncomfortably close to unconstitutionally mandatory status.

is especially disappointing because its analysis is so shallow. To give just one example, Johnson states that the Guidelines are presumptively reasonable because they encompass and incorporate all the other 3553(a) factors. This is simply not correct. It is closer to the truth to say they contemplate all the negative factors about a defendant's history and characteristics and none of his positive factors. Under the Guidelines, the only part of the defendant's past that counts is his criminal history. His employment record, military service, family ties, educational achievements, etc. all count for exactly nothing in calculating his Guideline range.

Fortunately, not all courts have downed the presumptive reasonableness Kool-Aid. Indeed, several have held that the Guidelines are not entitled to presumptive weight. There is a substantial circuit split brewing on this issue.

Accordingly, defendants in the Fourth Circuit should always object to a district court giving the advisory Guidelines presumptive weight. Acknowledge Johnson but preserve the issue just in case the Supreme Court decides to entry the fray.

National Sentencing Resource Counsel Amy Baron-Evans has written a fabulous paper, Antidote to the Kool-Aid, laying out the argument that the Guidelines are not presumptively reasonable. Beyond providing great ammo for a frontal attack on Johnson, Amy's paper has a lot of fantastic ideas about how to blunt and minimize its impact.

It is something every lawyer in the Fourth Circuit should take a look at.

Monday, May 01, 2006

Alternate Sentence Saves Pre-Booker Enhancement; Defendant Silence OK Basis for Post-Booker Guidelines Enhancement

US v. Revels: Revels robbed a convenience store of $800 at gunpoint. After he turned himself in, he was convicted of being a felon in possession of a firearm. His pre-Booker Guideline calculations included a four-level increase under USSG 2K2.1(a)(2) for possessing the gun in connection with another felony offense (the robbery). Revels objected to the enhancement on Blakely grounds, which the district court overruled. The district court then sentenced Revels to 120 months in prison - the top of the Guidelines and the statutory maximum for the offense. Nonetheless, in accordance with Hammoud, the district court also announced that it would impose an alternate sentence of 120 month in prison treating the Guidelines as mandatory. Revels appealed.

The court affirmed the sentence, although it found that a Booker Sixth Amendment violation had taken place. Specifically, the court applied the recent Milam decision, holding that Revel's Blakely objection and his failure to object to the facts supporting the enhancement could not be used in a pre-Booker mandatory Guidelines scheme to increase his sentence. The maximum sentence which Revels could have received in that system was only 115 months. Nonetheless, the court found the error harmless because of the 120-month alternative sentence set forth by the district court. Judge Luttig concurred, arguing that Milam did not apply because Revels was specifically asked whether he had any objections to the presentence report and answered "no" and thus had not stood silent.

While relying on Milam to conclude that Sixth Amendment error had taken place, the court also took a step to limit the application of Milam in a post-Booker advisory Guidelines scheme. In fn2, the court states:

Nothing in our decision today disables district courts from using undisputed (though not affirmatively admitted) facts in calculating an advisory Guidelines range. Whereas silence may not render a fact admitted for Booker purposes, it will suffice to render a fact undisputed. . . . In other words, nothing about this decision or Milam affects in any way the district court's calculation of an advisory Guidelines range after the Booker decision.

(citations omitted).