Sentence Vacated Due to Ineffective Assistance of Counsel, Substantive Unreasonableness

US v. Freeman: When she was a teenager, Freeman broke her tailbone, was prescribed opioids, and became addicted, In the intervening 16 years, she faked prescriptions to obtain an increasing number of pain pills, some of which she used herself and some of which she sold. Eventually, she was charged and pleaded guilty to possession with intent to distribute. She arrived at sentencing facing an advisory Guideline range of 210 to 240 months in prison. Although she had made some objections to the Guideline calculations (with regards to relevant conduct, an obstruction enhancement, and the lack of reduction for acceptance of responsibility), those objections were withdrawn by counsel (with Freeman's consent), who argued primarily for a variance or that Freeman be deferred into a drug court program. The district court eventually imposed a sentence of 210 months in prison.  

A divided Fourth Circuit vacated Freeman's sentence on two grounds (after directly appellate counsel to brief them following an Anders brief). The first was that Freeman received ineffective assistance of counsel at sentencing based on the withdrawal of the objections to the Guideline calculations. All of them had potential merit and, if successful, could have dropped the advisory Guideline range down to 97 to 121 months. There was enough on the record showing counsel's confusion and apparent lack of grasp of those issues (counsel said in withdrawing the objections that they would not impact the sentence anyway) to demonstrate deficient performance and the potential change in the Guideline range showed prejudice. The second basis for vacating the sentence was that it was substantively unreasonable, even though it was presumptively reasonable. That was because the district court failed to consider sentencing disparities between Freeman and other opioid defendants (who, on average, received a sentence about half as long) and did not adequately address Freeman's history of addiction.

Judge Quattlebaum dissented. He noted that this was the first time the Fourth Circuit had ever found ineffective assistance in a direct appeal and argued that that issue should have been left for collateral attack, given that there was nothing in the record suggesting what strategic consideration (if any) trial counsel had for waiving the Guideline objections. As to the substantive reasonableness of the sentence, he notes that this is also the first time the Fourth Circuit has found a within-the-Guideline sentence to be substantively unreasonable. He argued that the disparity identified by the court is not a good comparison (not "apples to apples," in other words) and that the district court did consider Freeman's history of addiction.

UPDATE: Per Sentencing Law & Policy, the court has decided to rehear this case en banc, without any apparent request from the Government. As a result, this opinion has been withdrawn pending the outcome of the en banc proceedings.