Rule 36 a Limited Vehicle for Sentence Correction

US v. Vanderhorst: In 2007, Vanderhorst pleaded guilty to a drug conspiracy and was sentenced as a career offender, based partly on prior convictions from North Carolina. One of those prior convictions, years later, was corrected from a “conspiracy to sell and deliver cocaine” (as it was described in the PSR) to a “conspiracy to traffick cocaine by transportation.” In 2016, Vanderhorst filed a motion under Rule 36 of the Rules of Criminal Procedure to correct the “clerical error” in the PSR and that, without the error, he would not have been sentenced as a career offender. The district court denied the motion, “holding that defendants are categorically barred from relying on Rule 36 as a basis for obtaining resentencing.”

The Fourth Circuit affirmed, although on different grounds. The court held that a PSR is a “other part of the record” for Rule 36 purposes and the mislabeling of the prior offense was a “clerical” error. It then held that there is no categorical bar to a defendant seeking sentencing relief under Rule 36, but noted that the situations where that can happen will be relatively rare. The court cited approvingly a prior unpublished decision which allowed for resentencing where a career offender sentence had been based on an error as to which count of a prior indictment the defendant pleaded guilty to. With the error corrected it was clear the defendant no longer qualified as a career offender. By contrast, Vanderhorst was not entitled to relief because he still had the requisite number of career offender predicates. The court rejected his attempt to relitigate the status of two of them, noting that that was a substantive argument and “a defendant may obtain relief under Rule 36 based on clerical errors, not substantive errors.”

IAC Prejudice Shown Where Defendant Misinformed of Immigration Consequences of Plea

US v. Murillo: Murillo is a lawful permanent resident who came to the United States from Mexico in 1995. In 2016, he was caught after transporting drugs from New Mexico to Virginia and selling them to a confidential informant. He was charged with two drug counts and retained an attorney, partly because she had immigration experience, including “touting her knowledge of immigration law on Spanish radio.” Murillo agreed to a guilty plea, but only after assurances from counsel that he could still fight against potential deportation. In fact, the offense to which he pleaded guilty made deportation mandatory. After being sentenced to 24 months in prison, Murillo learned that after he served his sentence he would be deported.

Murillo filed a 2255 motion arguing that counsel had been ineffective with regard to her advice on the immigration consequences of his plea and that he would not have accepted the plea had he been informed correctly. The district court denied the motion, not concluding that Murillo couldn’t show any prejudice even if counsel had provided deficient performance because he failed to prove that it would have been rational to reject the plea agreement. In particular, the court held that Murillo could not overcome a provision in his plea agreement that he “want[ed] to plead guilty regardless of any immigration consequences.”

On appeal a divided Fourth Circuit reversed the district court. It held that the district court put too much weight on the single line in the plea agreement, as arrayed against the other evidence presented that Murillo’s main concern during the proceedings was the impact a conviction would have on his immigration status. Doing so went against “Strickland’s fact-dependent prejudice analysis.” While language from a plea agreement was one of those relevant facts, it could not be determinative. A willingness to “plead guilty regardless of any immigration consequences,” the court held, “does not mean that the defendant was willing to plead guilty if doing so meant mandatory deportation” where the context was that everyone involved suggested deportation was not mandatory.

Judge King dissented, arguing that Murillo failed to show that his attorney had been deficient in her representation of him in addition to failing to show prejudice.

Cop Questions About Suspect “Helping Himself Out” Interrogation, But Harmless Error

US v. Bernard: Bernard was driving a Jeep that was pulled over because he was “driving erratically” and an officer feared he was impaired. After a patdown didn’t uncover anything suspicious, Bernard went and sat in the officer’s car. Conversation with Bernard eventually consent to search of his Jeep, which uncovered several firearms and 53 mason jars full of marijuana. Bernard was arrested, not Mirandized, and made inculpatory statements which the Government eventually conceded it could not use against him. However, while being transported to jail, the officer told Bernard that “he might want to think about trying to help himself out,” which led Bernard to make more inculpatory statements. After motions to suppress the statements and physical evidence were denied, Bernard was convicted at trial and sentenced to 62 months in prison.

On appeal, the Fourth Circuit affirmed the conviction. The court quickly dealt with the Fourth Amendment challenge on the basis that there was no reasonable suspicion upon which to stop Bernard or that the officer took longer than necessary to complete the traffic stop. As to the statements made on the way to jail, the court noted that the question was whether the officer’s statement during the trip “constitutes the equivalent of express questioning and therefore triggers Fifth Amendment protection.” The court held that it was, because in “light of the friendly conversation” between the officer and Bernard up to that point, the statement in the patrol car “lost the sting of a traditionally coercive custodial interrogation.” As a result, the officer “should have known that his invitation to cooperate was reasonably likely to induce Bernard to provide him with even more self-incriminating information.” However, the error was harmless because the “self-incriminating statements Bernard made are of small consequences given the amount of marijuana recovered and the guns.”

Judge Niemeyer concurred in the judgment, arguing that on the Fifth Amendment issues that the officer’s statement “was only friendly advice about future conduct . . . and was not reasonably likely to elicit an inculpatory response at that time.”