Seventh Circuit Says Begay and Chambers Must Be Applied Retroactively

Retroactivity has been in the news a lot lately, thanks to the U.S. Sentencing Commission’s ongoing consideration of whether to give already-sentenced defendants the benefit of more favorable crack guidelines. But crack defendants are not the only inmates serving extraordinarily long terms based on recently discarded aspects of federal sentencing law.  Earlier this week, the Seventh Circuit approved retroactivity for another category of such inmates in Narvaez v. United States (No. 09-2919).

The Supreme Court’s recent decisions in Begay and Chambers substantially narrowed the reach of the Armed Career Criminal Act’s fifteen-year mandatory minimum.  (For background, see this post.  Ironically, shortly after Narvaez was decided, the Court issued its opinion in Sykes v. United States, which seemed to back away from Begay.)  Five years before Begay, Luis Narvaez pled guilty to bank robbery and was sentenced as a career offender under the sentencing guidelines based on his prior convictions for “violent felonies,” including two convictions for failure to return to confinement in violation of Wis. Stat. § 946.42 (3)(a).  Later, in Chambers, the Supreme Court ruled that the Illinois crime of failing to report for confinement did not count as a “violent felony.”  Narvaez then filed a motion under 28 U.S.C. § 2255 to vacate his sentence in light of Chambers.  The district judge held that Chambers did not apply retroactively, but granted Narvaez a certificate of appealability.

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New Counsel, Continuances, and the Sixth Amendment — Lawyers Don’t Always Have to Take the Case as They Find It

The Seventh Circuit had an interesting new decision a couple weeks ago on the Sixth Amendment right to choice of counsel, United States v. Sellers (No. 09-2516).  Among other notable aspects of the case, former U.S. Supreme Court Justice Sandra Day O’Connor sat on the panel.

Here’s what happened:

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges.  Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him to appear as secondary counsel. Oppenheimer, by all indications, was a stranger to Sellers, having never been hired by him. Nevertheless, Oppenheimer filed an appearance, Wiener did not. (3)

Trial was set for May 12, 2008.  On May 7, Sellers requested a continuance so that he could proceed with counsel of his choice, David Weiner, who was scheduled to try another case in state court on May 12.  The district judge ultimately moved the federal trial back to May 19, but that conflicted with yet another case Weiner was scheduled to try in state court.

On May 16, Sellers informed the court that he wished to fire Oppenheimer and retain new counsel.  On May 19, the date trial was supposed to begin, Sellers informed the court that he had a new lawyer, but the new lawyer would only file an appearance if a continuance were granted so that he could adequately prepare for trial.  The court denied this request, requiring Sellers either to proceed pro se or with Oppenheimer.  Sellers chose Oppenheimer, and he was convicted and sentenced to fifteen years in prison.

The Seventh Circuit, however, held that the denial of a continuance violated Sellers’s right to counsel of his choice.

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Preview of Sykes, the Supreme Court’s Latest ACCA Case

The Supreme Court will hear argument on January 12 in Sykes v. United States, the latest entry in its recent series of cases on the Armed Career Criminal Act.  This case may provide a good opportunity for the Court to clarify what state of mind is required for a prior conviction to trigger the ACCA’s fifteen-year mandatory minimum.  (For background on the ACCA, see my posts here, here, and here.)

The Court created the state-of-mind problem in Begay v. United States, 553 U.S. 137 (2008), which held that a prior conviction does not count as a “violent felony” under the ACCA unless the crime was “purposeful, violent, and aggressive.”  This is a rather mysterious phrase.  Although the word “purposeful” is a familiar culpability term, it is not clear what “violent” and “aggressive” are meant to connote in this context.  And even “purposeful” has some ambiguity, as any law student who has ever wrestled with the elusive distinction between “general intent” and “specific intent” will tell you.

Begay itself indicated that DUI does not satisfy the PVA test because DUI is a strict liability offense.  This teaches that some culpability is indeed required for an offense to count as a “violent felony,” but Begay provided little guidance beyond that.

Then came Chambers v. United States, 129 S. Ct. 687 (2009).  

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