Defense Counsel and Sentencing: Tenth Circuit Indicates That Lawyers Must Advise Clients on Relevant Conduct

In a criminal-justice system dominated by plea-bargaining and harsh sentencing laws, the core responsibility of a defense lawyer is no longer to seek acquittals at trial, but to minimize the harm suffered by the client as a result of a conviction.  Ineffective assistance law should reflect this reality.  Padilla v. Kentucky and its progeny (see this post) suggest that there may indeed be a growing appreciation in the courts that defense counsel must be knowledgeable and provide good advice about the crucial things that happen to a defendant post-conviction.  Although the courts have long recognized as much in capital cases, it is good to see more attention now being given to the role of defense counsel in the noncapital setting.

Complementing what is happening in the collateral-consequences cases, the Tenth Circuit recently ruled that a defendant’s right to effective assistance was violated when his lawyer did not warn him of the dangers of confessing to uncharged criminal conduct during a presentence investigation meeting with a probation officer. 

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Seventh Circuit Reverses Position on Fast-Track Sentencing

Last week, in United States v. Reyes-Hernandez (No. 09-1249), the Seventh Circuit overruled United States v. Galicia-Cardenas, 443 F.3d 553 (7th Cir. 2006), and held that sentencing judges may consider “the disparate treatment of immigration defendants that is created by fast-track programs in determining whether a Guidelines sentence is greater than necessary under the § 3553(a) factors” (30).  This is an important decision that deepens a circuit split on the sentencing of illegal reentrants into this country. 

At least sixteen districts, including the Mexican border districts, have developed fast-track programs that offer extraordinary sentencing benefits for illegal reentrants who plead guilty in an especially expedited fashion.  (For background, see my article at 27 Hamline L. Rev. 357.)  However, many other districts, including all of the Seventh Circuit districts, do not offer defendants the fast-track option, which creates wide sentencing disparities in illegal reentry cases.  When the federal sentencing guidelines were converted from mandatory to advisory in 2005, many defendants in non-fast-track districts argued that judges ought to give them the fast-track benefit in order to mitigate the disparities.  Appellate courts, however, uniformly rejected these arguments prior to 2007, when the Supreme Court reemphasized the discretionary nature of federal sentencing in Kimbrough v. United States, 552 U.S. 85.  Post-Kimbrough, three circuits, now joined by the Seventh, have ruled that sentencing judges may consider the fast-track disparities.   

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SCOTUS to Rule on Meaning of “Cocaine Base”

In a 1986 law that must surely rate as one of Congress’s most ill-informed overreactions to a high-profile tragedy– the cocaine-related death of college basketball star Len Bias — a new mandatory minimum ten-year sentence was created for drug offenders involved in dealing 50 or more grams of “cocaine base.”  Never mind that Bias used the powder form of cocaine.  Never mind that crack — the form of cocaine that everyone was most concerned about at the time — is only one type of cocaine base.  Congress instead chose to direct the harsh new penalties at cocaine base, a category that is narrower than all cocaine, but broader than just crack (at least if the term ”cocaine base” is understood literally).  As is now well known, the result of this unfortunate law has been to create massive racial disparities in federal drug sentencing between white defendants (who are typically involved with powder) and black defendants (who are more typically involved with crack). 

Although “cocaine base” cases normally involve what is undisputably crack, defendants have from time to time litigated whether a particular susbtance really triggers the ten-year minimum.  These cases have produced a longstanding circuit split, with six circuits (the First, Second, Third, Fourth, Fifth, and Tenth) reading “cocaine base” to encompass all forms cocaine that are chemically classified as a base, and five circuits holding that “cocaine base” means more narrowly what Congress was really concerned about, i.e., crack and other types of smokable cocaine base.  With today’s cert. grant in DePierre v. United States, 599 U.S. 25 (1st Cir. 2010), the Supreme Court appears poised finally to resolve the issue. 

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