Fives Grant Pro Se Appellant's Request for Appointed Counsel in Crack Reduction Appeal

United States v. Robinson, No. 08-10424 (5th Cir. Sept. 10, 2008) (Reavley, Stewart, Owen*)

Back in 1994, Robinson received a 180-month sentence for possession of crack with the intent to distribute it. After the Sentencing Commission retroactively reduced the crack guidleines earlier this year, Robinson filed a pro se motion requesting a reduction in his sentence under 18 U.S.C. § 3582(c)(2). His motion included a BOP report detailing his generally positive conduct while in prison, as well as a letter from the local Federal Public Defender's office stating that it did not represent him. The district court treated the latter as a request for appointed counsel.

The Government responded with a 25-page sentencing memo making several arguments: Robinson wasn't entitled to and didn't need an attorney because the issues were "straightforward"; if the court were to reduce Robinson's sentence, it should only cut it down to 175 months, which would have been the top of the reduced Guidelines range, because of Robinson's criminal history and three disciplinary actions while he was in prison; and Booker doesn't apply to a § 3582(c)(2) proceeding.

"The district court immediately issued a one-page order giving Robinson a new sentence of 175 months without providing him an attorney. The court did not explain why it was not providing Robinson an attorney, what effect (if any) Booker might have on the sentencing process, or why it selected a 175-month sentence." A couple of weeks later Robinson filed a motion for reconsideration, explaining the context of the disciplinary actions, and disputing two factual matters in the Government's sentencing memo. "Three days later the court denied Robinson’s motion for re-consideration in a one-sentence order."

Robinson appealed, and also moved for appointment of counsel for his appeal. (The Government did not respond.) The court of appeals identified three possible constitutional or statutory bases for appointing counsel for Robinson: the fundamental fairness required by the Fifth Amendment's Due Process clause, the Sixth Amendment right to counsel in every stage of criminal proceedings, and the CJA's allowance for counsel in matters "ancillary" to direct appeal. In 1995 the Fifth Circuit held in United States v. Whitebird that none of those provisions entitle a defendant to counsel in a § 3582(c)(2) proceeding. But the court here noted that the sentence procedure for § 3582(c)(2) proceedings---which is found in guideline §1B1.10---is different than it was at the time Whitebird was decided, due to a 2008 amendment:

While previous courts had to determine what sentence they would have given the defendant in light of the facts as they existed at the time of the original sentencing, the new process requires district courts when answering this question to consider, in every case, “the nature and seriousness of the danger to any person or the community that may be posed by a reduction in the defendant’s term of imprisonment” and allows district courts to consider “post-sentencing conduct of the defendant that occurred after imposition of the original term of imprisonment.”

Nevertheless, the court declined to decide whether Whitebird remains good law, since neither party had briefed the matter and no other court of appeals has yet addressed whether the 2008 amendment to guideline § 1B1.10 had altered the appointed counsel calculus. Instead, the court exercised its discretion to appoint counsel for Robinson "in the interest of justice."

Robinson’s appeal could raise a number of issues, and we would be more likely to reach the correct resolution of those issues (and therefore serve the interest of justice) if we had attorneys on both sides arguing their respective positions. Those issues may include whether Robinson was entitled to an attorney as a matter of right in the district court, whether Booker applies to § 3582(c)(2) proceedings (as the Ninth Circuit has held), rendering the process set out in USSG § 1B1.10(b) advisory and granting the district court more discretion in crafting a new sentence, whether the district court erred by not holding an evidentiary hearing once he contested the factual basis of some of the Government’s contentions, and whether the district court abused its discretion in not giving him a larger sentence reduction.

As for the Booker question, the court pointed out that the Ninth Circuit has held that Booker applies to § 3583(c)(2) proceedings. The Fourth Circuit, by contrast, has held "in an unpublished one-paragraph opinion, that the district court did not abuse its discretion nor commit reversible error by concluding that Booker does not apply to § 3582(c)(2) proceedings." Looks like we'll have an answer from our own circuit before too long.

*The opinion also contains an historical discussion of the whole crack issue. Judge Owen did not join that portion of the opinion, or the portion recounting the procedural history of this case. She did, however, join the majority's analysis of the appointed-counsel issue in full.