Defendant Can Challenge Attorney’s Failure to Appeal Despite 2255 Waiver, Seventh Circuit Says

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Charged in federal court with drug trafficking, Fred Dowell decided to enter into a plea agreement with the government.  The deal included various stipulations as to his sentence, but reserved for Dowell the right to challenge the government’s contention that he should be sentenced as a career offender under the federal sentencing guidelines.  Assuming the stipulations were accepted by the sentencing judge, Dowell waived his right to appeal the sentence, except that he expressly reserved the right to appeal an adverse career offender determination.  Dowell also surrendered his right to mount a collateral attack on the sentence under 28 U.S.C. §2255.

Dowell was, in fact, sentenced as a career offender.  By his account, he instructed his lawyer to appeal this decision, as he had reserved the right to do.  No appeal was filed.  By the time Dowell realized this, it was already too late for an appeal to be taken.  Accordingly, he tried a §2255 motion in the district court, contending that his lawyer’s failure to appeal constituted ineffective assistance of counsel in violation of the Sixth Amendment.  Sorry, said the district court, but you waived your rights under §2255 in the plea agreement.

Earlier today, the Seventh Circuit reversed in Dowell v. United States (No. 10-2912).   Read more »

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Federal Criminal Cases, 1928-1930: Surprisingly Similar to Today, But Also Very Different

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In anticipation of the conference here next month on the Wickersham Commission, I’ve been reviewing the thirteen voluminous reports the Commission issued in 1931 on various aspects of the criminal-justice system.  One that holds some interesting surprises is the “Progress Report on the Study of the Federal Courts.”  The heart of this report is a fascinating, detailed statistical analysis of the criminal cases in the District of Connecticut for fiscal years 1928-1930.

One thing that strikes me as remarkable is the almost complete absence of trials — the system was dominated then, as now, by guilty pleas.  Old-timers today will sometimes tell you about a golden age of trials in the federal system in the 1970′s.  In that decade, guilty plea rates hovered between 77% and 82%.  After 1981, the rate climbed steadily, reaching more than 96% of adjudicated cases in 2009.  But this, apparently, is not a new phenomenon.  Among 740 criminal cases filed in the District of Connecticut between 1928 and 1931, only nine went to trial.  That’s right, only nine trials in three years, or 1.5 criminal trials per judge per year.  (Eight of these trials, by the way, took less than one full day to try.)  The guilty plea rate in adjudicated cases was over 98%.

After doing some digging for national data, I discovered that the guilty plea rate rose steadily between 1916 and 1933, reaching a peak of 91%.  (See Ron Wright’s helpful data compilation here.)  So, Connecticut seems not to have been terribly atypical.

The Connecticut data are, in fact, quite reminiscent of a modern“fast-track” plea-bargaining system.   Read more »

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Seventh Circuit Rejects Effort to Extend Padilla Beyond Deportation Context

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In Padilla v. Kentucky (2010), the United States Supreme Court held that an attorney renders constitutionally inadequate representation by failing to advise his or her client of the deportation consequences of a guilty plea. Prior to Padilla, many lower courts had adopted a distinction between “direct” and “collateral” consequences of a guilty plea. While defense counsel was required to advise the client of direct consequences (e.g., a potential prison sentence), counsel was not required to warn the client of collateral consequences (which included, in the view of some lower courts, the risk of deportation). Padilla, however, cast doubt on the existence and meaning of a direct/collateral distinction, which immediately raised questions about whether attorneys might be required to advise clients regarding other sorts of consequences that had previously been regarded as collateral.

Earlier today, in United States v. Reeves (No. 11-2328), the Seventh Circuit turned aside an effort to extend Padilla to the risk that a conviction in one case will be used to enhance the defendant’s sentence in a future case.

Here’s what happened.  Read more »

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Ice Gets Iced

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Earlier this summer, in Southern Union Co. v. United States (No. 11-94), the Supreme Court seemed to reverse course yet again in its on-and-off revolution in the area of jury-trial rights at sentencing.  The revolution began with Apprendi v. New Jersey (2000), which held that a jury, and not a judge, must find the facts that increase a statutory maximum prison term.  The revolution seemed over two years later, when the Court decided in Harris v. United States that no jury was required for mandatory minimum sentences.  But, another two years after that, in Blakely v. Washington, the revolution was back on, with the Court extending Apprendi rights to sentencing guidelines.  Blakelywas especially notable for its hard-nosed formalism: Apprendi was said to have created a bright-line rule firmly grounded in the framers’ reverence for the jury; we are not in the business, declared Justice Scalia for the Blakely majority, of carving out exceptions to such clear rules in the interest of efficiency or other contemporary policy concerns.

Then came Oregon v. Ice in 2009, which seemed to signal that the Court had again grown weary of the revolution.   Read more »

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Sentencing and the Limits of Actuarial Risk Assessment

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As child molesters go, Cory Reibel seems a relatively low-risk proposition.  He is a first-time offender, was not sexually abused himself as a child, and victimized a girl instead of a boy — studies indicate that all of these factors point to a reduced risk of recidivism.  Yet, he was sentenced to the statutory maximum of 30 years in prison by a judge who wanted to prevent him from offending again.

The judge’s sentence seems to fly in the face of the science of risk assessment.  Actuarial risk assessment (that is, the determination of an offender’s risk based on a statistically sound analysis of recidivism data involving other offenders with similar characteristics) seems to be playing an increasingly prominent role in both pretrial release and post-conviction sentencing decisions.  Scientifically speaking, this is pretty clearly an advance on pure intuition as a basis for predicting risk.  However, actuarial risk assessment does present some important ethical difficulties when it is used as a basis for determining how severe a punishment should be.

These difficulties were on display earlier today when the Seventh Circuit turned aside Reibel’s challenge to the reasonableness of his sentence.   Read more »

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Dorsey v. United States: So Long, Saving Statute?

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Last month, in Dorsey v. United States (No. 11-5683), the Supreme Court resolved an important circuit split on the interpretation of the Fair Sentencing Act of 2010.  The FSA softened the controversial mandatory minimum sentences for crack cocaine offenses that have been in place since 1986.  There’s no question that crack offenders who committed their crimes after the statute’s effective date, August 3, 2010, benefit from the new regime.  However, the lower courts have divided over the handling of crimes committed before the effective date, but sentenced after it.  Although this may sound like a minor dispute, given the volume of crack offenses prosecuted in federal court and the eleven-month median time between indictment and sentencing in these cases, there may be hundreds or thousands of defendants who are affected by its resolution.

Such timing questions are often resolved by reference to the federal “saving statute” of 1871 (1 U.S.C. §109), which indicates that the law in place at the time of an offense should normally govern the penalty.  However, this is only a default principle; earlier Supreme Court decisions indicate that Congress can make reduced penalties applicable to all defendants if Congress demonstrates such an intent either expressly or by necessary implication.  Since the FSA did not expressly address the question one way or another, Dorsey turned on the finding of implied congressional intent.  By a narrow 5-4 margin, the Court decided that Congress had indeed intended to make the FSA applicable to all defendants sentenced after the statute took effect.

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Seventh Circuit Weighs in on Aggravated Identity Theft Sentencing

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The aggravated identity theft statute (18 U.S.C. §1028A) specifies a sentence of two years — no more, no less — for each violation.  So, when a defendant is convicted of multiple violations of the statute, should the two-year sentences be imposed concurrently or consecutively?  Today, in United States v. Dooley (No. 11-2256), the Seventh Circuit recognized that the sentencing judge has discretion in making the decision, but held that the judge must consider the factors set forth in U.S.S.G. §5G1.2 Application Note 2(B).

Dooley was convicted in three separate counts of violating §1028A, leaving the judge to choose among three sentencing options: 24 months, 48 months, or 72 months.  (I leave out the effect of Dooley’s conviction of various other offenses, which did not play a significant role in the Seventh Circuit’s analysis.)  In selecting the 72-month option, the judge focused on the need to avoid disparities relative to another defendant.  However, the judge did not mention the Note 2(B) factors.  This, the Seventh Circuit held, was plain error.   Read more »

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Who Is a “Supervisor”? We Know One When We See One

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Justice Potter Stewart famously eschewed a formal legal definition of pornography, and instead embraced the “I know it when I see it” test. Based on his opinion yesterday in United States v. Figueroa (No. 11-2594), Judge Posner seems to have a similar approach in mind for determining whether a drug trafficker is a “manager” or “supervisor.”

Under § 3B1.1 of the federal sentencing guidelines, a manager or supervisor of criminal activity receives a substantial sentence enhancement. An even larger enhancement is contemplated for some defendants who qualify as a “leader” or “organizer.” The guidelines suggest a seven-factor test for determining whether a defendant is a leader or organizer, but are silent on the meaning of manager and supervisor. However, in the Seventh Circuit and elsewhere, it has been common for courts also to look to the seven factors when making manager/supervisor determinations.

Writing for the panel in Figueroa, Judge Posner seemed to scoff at this approach:  Read more »

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Another Habeas Slap-Down From the Supreme Court; Where Is Habeas Law Heading?

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The Supreme Court summarily overturned yet another habeas grant earlier this week in Coleman v. Johnson (No. 11-1053).  Johnson was convicted in Pennsylvania state court as an accomplice and co-conspirator in a murder.  Without getting into all of the details, let’s just say that the state’s case against Johnson was circumstantial and something less than airtight.  Johnson thus sought to have his conviction overturned in state court on the ground that the evidence was insufficient to support the jury’s verdict, invoking Jackson v. Virginia, 443 U.S. 307 (1979).  The state courts rejected this claim, as did a federal district court, but the Third Circuit reversed.

The Supreme Court overturned the Third Circuit’s decision in a brusque per curiam opinion.

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Speedy Trial Act Does Not Require Articulation of Ends-of-Justice Findings at Time Continuance Granted

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In general, the Speedy Trial Act requires federal criminal trials to commence within 70 days of the time a defendant is charged or makes an initial appearance (whichever occurs laters). However, the Act also permits continuances that do not count against the 70 days when a judge finds “that the ends of justice served by [a continuance] outweigh the best interest of the public and the defendant in a speedy trial.” 18 U.S.C. § 3161(h)(7)(A). These ends-of-justice findings must be made on the record, either orally or in writing, but the statute does not specify when they must be made.

In United States v. Zedner, 547 U.S. 489 (2006), the Supreme Court indicated that the “best practice” is for the judge to articulate his or her findings at the same time that a continuance is granted. But are lower courts actually required to adhere to this “best practice”?

Earlier today, in United States v. Wasson (No. 10-2577), the Seventh Circuit affirmed that express ends-of-justice findings may await the defendant’s motion to dismiss on speedy trial grounds.  Read more »

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Seventh Circuit Affirms Money-Laundering, Conspiracy Convictions of Car Dealers for Cash Sales to Drug Traffickers

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Category: Criminal Law & Process, Federal Criminal Law & Process, Public, Race & Law, Religion & Law, Seventh Circuit
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Amir Hosseini and Hossein Obaei, who operated three Chicago-area automobile dealerships, sold many luxury cars to drug dealers over a ten-year period. Hosseini and Obaei were apparently popular with this market segment because of their willingness to take large cash payments in small bills. Eventually, federal prosecutors caught up with them, and, following a five-week trial, they were convicted by a jury on 97 counts of conspiracy, money laundering, mail fraud, illegal transaction structuring, bank fraud, and aiding and abetting a drug conspiracy. The Seventh Circuit has now affirmed these convictions and the 15- and 20-year sentences that went along with them.

Had it been properly preserved, the most substantial legal issue on appeal would have been the question left open by United States v. Santos, 553 U.S. 507 (2008): whether, in a traditional money-laundering prosecution, the government must prove that the allegedly laundered proceeds are net profits, as opposed to gross receipts, of the underlying crime. (See my blog post about Santos here). However, since the Santos issue was raised for the first time on appeal, the court used plain-error review and found that the defendants could not satisfy the standard given the “unsettled state of the law.” (2)

Hosseini and Obaei also raised an interesting voir dire issue.

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Setser v. United States: Bureaucratic Sentencing on Trial in the Supreme Court, Again

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While he was already on probation for another offense, Monroe Setser was arrested for trafficking in meth.  The arrest led to three separate criminal proceedings: a revocation of Setser’s probation in state court and fresh prosecutions in both state and federal court.  (One wonders why our law-enforcement authorities have nothing better to do with their time than pile on the charges in these sorts of redundant prosecutions.  Oh, to overturn the Supreme Court’s regrettable decision in Bartkus v. Illinois!)  The federal prosecution reached the sentencing stage first, and the district court decided that it should rule on whether the 151-month federal sentence should be served consecutively to or concurrently with the anticipated state sentences.  The court split the difference, determining that the federal sentence would be consecutive to the sentence for the probation violation, but concurrent with the sentence for the fresh state charge.  Then — wouldn’t you know it! — the state court made the federal sentence a logical impossibility by ordering the two state sentences to run concurrently with one another.

On appeal, Setser argued unsuccessfully that the district court lacked authority to make a concurrent/consecutive decision relative to a state sentence that had not yet been imposed.  In Setser’s view, it was up to the Bureau of Prisons to make the call, based on its authority under 18 U.S.C. § 3621(b) to decide whether federal sentences are to be served in a state or federal facility.  The Fifth Circuit rejected this view, and the U.S. Supreme Court affirmed in a 6-3 decision earlier this spring.

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