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Post-Conviction
United States v. Bui
2014 WL 5315061 (3rd Cir. 2014)
Petitioner was denied effective assistance of counsel
The defendant was indicted on four drugrelated counts in connection with a conspiracy to cultivate and distribute marijuana. He pled guilty to two counts, including one count of violating 18 U.S.C. §860 (manufacturing and distributing marijuana within 1,000 feet of a school). Prior to sentencing, his trial counsel filed a motion seeking a sentence reduction under 18 U.S.C. §3553(f), the “safety valve” provisions, but withdrew the motion noting that under United States v. McQuilkin, 78 F.3d 105 (3d Cir. 1996), §3553(f) did not apply to convictions under 21 U.S.C. §860. The defendant was sentenced to the mandatory minimum of 120 months. In his pro se §2255 petition, the defendant argued that he was induced into pleading guilty based on his trial counsel’s claim that he would receive a “safety valve” reduction. The district court found that the defendant’s guilty plea was knowing and voluntary; therefore, the collateral-attack waiver provision of the plea agreement was enforceable. The court also found that the “exhaustive change of plea hearing remedied any alleged errors committed” by trial counsel; thus no prejudice. The Third Circuit granted a certificate of appealability on the issue of “whether [the defendant’s] attorney committed ineffective assistance by advising him to plead guilty to 21 U.S.C. §860, and whether, if [his] counsel [had] provided ineffective assistance, the collateral waiver in [the] plea agreement is enforceable as to that claim.” The appeals court noted that “potential sentencing exposure as an important factor in the decision-making process” and “[k]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” Therefore, counsel must “know the Guidelines and the relevant Circuit precedent,” but “an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where . . . an adequate plea hearing was conducted.” Here, there was no question that the defendant’s trial counsel provided him with incorrect advice regarding the availability of the safety valve reduction. Further, “the District Court’s plea colloquy here did not serve to remedy counsel’s error.” As for prejudice, the defendant satisfied that prong by asserting that, but for his counsel’s errors, he would have not pled guilty and would have gone to trial. “If [the defendant] were unable to benefit from a safety valve reduction, he would have gained no benefit from his plea agreement. Although the Government agreed to drop counts two and three, these charges were lesser included offenses, the elimination of which did not impact [his] sentencing exposure. [the defendant] has demonstrated prejudice, thus satisfying the second prong of the Strickland test.”
Crime of Violence
United States v. Reid
2014 WL 5314563 (8th Cir. 2014)
Attempted burglary in Missouri not violent felony under ACCA
The defendant was convicted of unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. §922(g)(1). The statutory maximum punishment, unless enhanced, is ten years. Based on his criminal history, the district court applied the statutory penalty range of fifteen years to life under the Armed Career Criminal Act, based, in part, on a prior Missouri conviction for attempted burglary. The court ultimately imposed a sentence of 188 months. The defendant appealed, arguing that the prior Missouri conviction was not a “violent felony” under §924(e). The Eighth Circuit explained that until 2007, attempted burglary in Missouri was considered a violent felony. See United States v. McKinney, 328 F.3d 993 (8th Cir. 2003). However, in 2007, the Supreme Court decided James v. United States, 550 U.S. 192 (2007), and “identified the proper inquiry as whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” The Court in James held that the Florida attempted burglary statute “was violent felony.” Applying the analytical framework established in James, the court held that the Missouri statute “prohibits preparatory conduct that presents a lesser risk of violent confrontation than does an act directed toward entry of a structure. Consistent with other circuits that have considered similar statutes, we cannot conclude that the conduct encompassedby the elements of the Missouri offense of attempted burglary, in the ordinary case, presents a serious potential risk of injury to another. Therefore, [the defendant’s] conviction for attempted second degree burglary in Missouri does not constitute a ‘violent felony’ under §924(e).”
Miscellaneous Issues
United States v. Hill
2014 WL 4920365 (1st Cir. 2014) Method of finding uncharged conduct was part of same course of conduct was proper
The defendant pled guilty to one count of distributing oxycodone after he sold 20 pills to a confidential informant (“CI”). The PSR contained two paragraphs that described several other drug sales that the parties agreed constituted relevant conduct. A third paragraph (numbered 4A) also set out claims by several informants who stated that the defendant sold them small quantities of pills over a several months. The PSR recommended that the defendant be held accountable for the 2,555 pills outlined in paragraph 4A, as relevant conduct of the charged offense. The defendant objected, arguing that the transactions were not relevant conduct because they were neither part of a “common scheme or plan” nor the “same course of conduct” as the offense of conviction. The drug amount increased the defendant’s sentencing range from 30 to 37 months, to a range of 84 to 105 months. The district court adopted the PSR and imposed a sentence of 84 months. On appeal, the defendant argued that the district court erred because “it focused its attention and findings on whether the conduct reported in paragraph 4A was sufficiently connected only to the other undisputed relevant conduct, rather than directly to the offense of conviction.” Reviewing for plain error, the First Circuit disagreed, holding that the district court “ultimately and expressly acknowledged that the uncharged conduct must be relevant to the charged conduct. The district court also focused . . . on the task of explaining whether or not the ostensibly relevant conduct should be included in the same course of conduct or common scheme or plan as the drug trafficking offense for which [the defendant stood] convicted.” The sentence was affirmed. Judge Torruella wrote a concurring opinion “to note a disturbing trend in criminal prosecutions. All too often, prosecutors charge individuals with relatively minor crimes, carrying correspondingly short sentences, but then use section 1B1.3(a) to argue for significantly enhanced terms of imprisonment under the guise of “relevant conduct” other crimes that have not been charged (or, if charged, have led to an acquittal) and have not been proven beyond a reasonable doubt. In other words, [the defendant] was subject to an additional six to eight years in prison due to isolated drug sales not directly related to the twenty oxycodone pills which led to his conviction, all of which he was never arrested for, never charged with, never pled guilty to, and never convicted of by a jury beyond a reasonable doubt. This is a prime example of the tail wagging the dog.” “Thepractice of arguing for higher sentences based on uncharged and untried ‘relevant cond uct’ for, at best, tangentially related narcotics transactions seems like an end-run around these basic constitutional guarantees afforded to all criminal defendants. The government’s role is to ensure justice, both to the accused and to the public at large; it is not to maximize conviction rates and argue for the greatest possible sentence. And, while it is unclear to me whether this trend is due to shaky police work resulting in cases that cannot be proven beyond a reasonable doubt, prosecutorial laziness, or other less nefarious factors, it remains troubling regardless.”
United States v. Paladino
2014 WL 5012694 (3rd Cir. 2014)
Defendant’s right of allocution violated
In 2004, the defendant pled guilty to one count of distributing material depicting the sexual exploitation of a minor, and was supervised release. He was released from custody on April 24, 2013. Between July and August 2013, the defendant’s probation officer filed two petitionsreporting that he had violated three supervised release conditions namely the “con dition obligating Defendant not to associate with persons convicted of a felony,” the “condition obligating Defendant to abide by all provisions of the Computer Restrictionand Monitoring Program,” and the “condition obligating the Defendant to participate in a mental health treatment program and/or sex offender treatment program as directed by his probation officer.” At the revocation hearing, the district court first asked defense counsel if the defendant contested any of the violations alleged. The district court also asked whether the parties had “reached a joint recommendation as to the new sentence to be imposed” and the parties indicated their agreement to “a period of imprisonment of eight months to be followed by the continued supervision of the ten years.” The court then asked the defendant if he agreed with the proposed sentence, and he responded “Yes.” The record reflected that this was the only point that the district court personally addressed the defendant at the revocation hearing. The district court imposed a sentence imposed a sentence of 8 months and the defendant appealed, arguing that the court violated Rule 32(i)(4)(A)(ii) by not allowing him the opportunity of allocution. Reviewing for plain error, the Third Circuit agreed, holding that the district court committed plain error that affected the substantial rights of the defendant. The defendant’s sentence was in the middle of the advisory sentencing range. Had he been “afforded the opportunity to speak or present any information to mitigate the sentence, [his] statements may have prompted the District Court to exercise its discretion, in accordance with federal law, to impose a lesser sentence or, indeed, no term of imprisonment at all.” Finally, the denial of allocution impacted the “fairness, integrity, or public reputation of judicial proceedings” and granting relief was appropriate.
United States v. Randall
2014 WL 5471006 (5th Cir. 2014)
Mandatory minimum sentence did not apply
The defendant pled guilty to one count of conspiracy to possess with intent to distribute five kilograms or more of cocaine (Count 1), and one count of possession of a firearm in furtherance of a drug trafficking crime (Count 24). In the “Factual Basis,” the defendant admitted that the facts therein were sufficient to support the conspiracy charge and that the “overall scope” of the conspiracy involved five kilograms or more of cocaine. However, the Factual Basis stated that only 148.8 grams of cocaine and 35.2 grams of cocaine base had been seized from the apartment where he was arrested. The PSR found the defendant responsible for the drug amounts set out in the Factual Basis, which resulted in a sentencing range of 70 to 87 months, but concluded that the statutory mandatory minimum sentence of 120 months was required. The district court accepted the findings in the PSR and concluded that it was required to impose a sentence of 120 months on the drug count and a 60-month consecutive sentence on the firearm count. On appeal, the defendant claimed that the mandatory minimum sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000) and Alleyne v. United States, — U.S. —-, 133 S. Ct. 2151 (2013), because his conspiracy sentence was enhanced without the government proving, beyond a reasonable doubt, the quantity of drugs involved in the conspiracy. Reviewing for plain error, the Fifth Circuit agreed, holding that although the defendant had pled guilty to the conspiracy charge which involved a sufficient amount of drugs to trigger an increased mandatory minimum penalty, the Factual Basis and PSR only attributed a lesser quantity of drugs to him (148.8 grams of powder cocaine and 35.2 grams of cocaine base), which were not sufficient to trigger the mandatory minimum sentence. “Accordingly, we conclude that the district court plainly erred in imposing the mandatory minimum. Given the disparity between the otherwise applicable Guidelines range of 70 to 87 months and the erroneously applied 120-month statutory mandatory minimum the district court applied, we conclude that the error affects [the defendant’s] substantial rights, and failure to correct the error would seriously affect the fairness, integrity, or public reputation of judicial proceedings.”
Cases In This Issue
United States v. Bell, 2014 WL 5352792 (9th Cir. 2014)
United States v. Bui, 2014 WL 5315061 (3rd Cir. 2014)
United States v. Castro-Ponce, 2014 WL 5394061 (9th Cir. 2014)
United States v. Catone, 2014 WL 5158197 (4th Cir. 2014)
United States v. Dodd, 2014 WL 5462536 (4th Cir. 2014)
United States v. Fernandez, 2014 WL 5365686 (5th Cir. 2014)
United States v. Heredia, 2014 WL 5018109 (9th Cir. 2014)
United States v. Hernandez, 2014 WL 5314991 (9th Cir. 2014)
United States v. Hill, 2014 WL 4920365 (1st Cir. 2014)
United States v. Hinds, 2014 WL 5422977 (7th Cir. 2014)
United States v. Paladino, 2014 WL 5012694 (3rd Cir.2014)
United States v. Randall, 2014 WL 5471006 (5th Cir. 2014)
United States v. Reid, 2014 WL 5314563 (8th Cir. 2014)
United States v. Sinclair, 2014 WL 5336486 (7th Cir. 2014)
