Monday, February 03, 2020

Plain Error Requiring Reversal of Conviction Where Defendant Not Informed of ACCA at Plea Hearing

US v. Lockhart: Lockhart was charged with being a felon in possession of a firearm and pleaded guilty. During the Rule 11 colloquy, the magistrate judge informed Lockhart that the maximum sentence he faced was ten years in prison. There was no mention of a possible 15-year mandatory minimum sentence under the Armed Career Criminal Act. Sure enough, Lockhart qualified for sentencing under ACCA. Although the probation officer took note of the oversight in the PSR and Lockhart objected to the ACCA classification, he did not object to the failure to be informed of the ACCA statutory changes during his plea or seek to withdraw his plea. After being sentenced to the required 15-year term, Lockhart’s counsel explained that he “went over [ACCA] beforehand” and Lockhart was “fully aware of that.”

On appeal, a panel of the Fourth Circuit reluctantly affirmed Lockhart’s conviction and sentence based on binding Circuit precedent, but Chief Judge Gregory and Judge Floyd both concurred, arguing for that precedent to be reconsidered. The court granted review en banc and changed course, vacating Lockhart’s conviction.

Reviewing for plain error, the court observed that in order to show prejudice Lockhart had to show “a reasonable probability that, but for the error, he would not have entered the plea.” Although Lockhart never objected to the failure of the court to inform him of ACCA and did not move to withdraw his plea, the error “was an obvious and significant mistake” that “undermines the very purpose of Rule 11 that a defendant be informed of the charges against him and the consequences of his guilty plea.” ACCA “completely changed the sentencing calculus” and restricted any potential benefit Lockhart would have gotten from his guilty plea. The court also pointed out that Lockhart’s counsel had represented on appeal that Lockhart would go to trial if his guilty plea was set aside. In addition, while not directly ruling on Lockhart’s challenge under Rehaif, the court held that his “contention of prejudice is strengthened further” by that decision.

Judge Wilkinson concurred in the decision, arguing that the “unusual circumstances here persuade me that the proper remedy is to vacate Lockhart’s guilty plea,” explaining in conclusion that “[i]n short, too much went wrong here.” Judge Wynn also concurred, arguing that the court should have address the issue of how to review Rehaif claims (but not offering any mechanism for doing so). Judge Rushing, joined by Judges Niemeyer, Agee, and Quattlebuam, dissented, arguing that Lockhart had “not satisfied his burden to show that the Rule 11 error or the Rehaif error, separately or combined, affected his substantial rights.”

Congrats to the Defender Office in Western NC on the win!

Court May Consider Good Time at Sentencing

US v. Fowler: Fowler was charged with four counts of producing child pornography and one count of possession, all arising from his abuse of two 10-year-old girls. He pleaded guilty to all five counts without a plea agreement and was facing a combined statutory maximum of 140 years in prison. While the Guidelines recommended a life sentence, the Government argued for a sentence of 50 years, while Fowler argued for a sentence of 15 years (the mandatory minimum for the production counts). The district court agreed that the Government’s sentence was a “life equivalent” and not appropriate, but also rejected Fowler’s position. In the end, the district court imposed a sentence of 480 months (40 years), arriving at that number by considering how good time credits would potentially shorten it and result in Fowler’s release sometime around age 60.

The Fourth Circuit affirmed Fowler’s sentence. Fowler argued that the district court erred by considering the impact of good time credits when determining the sentence. The Fourth Circuit disagreed, finding no error (under plain error review) in considering good time credits. Such considerations fell within the factors set forth in 18 USC §3553(a), were not relied upon as a “stand alone factor,” and were not used to enhance Fowler’s sentence, only reduce it. Because age at release from prison is a factor in recidivism, such considerations are proper and the court would have to take good time credits into consideration in such matters. The court also rejected Fowler’s argument that his sentence was substantively unreasonable, holding that “there was nothing remotely unreasonable” about it.

Defendant Cannot Collaterally Appeal Order Denying Self Representation

US v. Sueiro: Sueiro was charged with multiple child pornography counts and was headed for trial. Along the way, through “over a year of pretrial hearings,” he requested that he be able to represent himself. The district court, after a hearing, ultimately denied Sueiro’s request. He appealed that ruling, without waiting for conviction, sentencing, or a final judgment.

The Fourth Circuit dismissed the appeal. In general, appellate courts only have jurisdiction to hear appeals from “final decisions of the district court,” which, in criminal cases, means judgements entered after the imposition of sentence. A narrow potential exception is the collateral order doctrine, which allows for the collateral review of orders that conclusively resolves the issue, the issue is an important one separate from the merits of the case, and it is effectively unreviewable at a later time. Noting that this “is not a balancing test” and that “a trial court order must satisfy each condition,” the court concluded it did not apply to the district court’s denial of Sueiro’s request to represent himself. Disclaiming reliance on civil cases (in which a party can collaterally appeal an order denying their request at self representation), the court concluded that self-representation was not one of those limited orders that could not be reviewed after a final judgment, noting that if the court ultimately concludes that the district court erred in denying Sueiro’s motion it would be presumptively prejudicial.