Monday, July 22, 2013

Ineffective Assistance of Counsel to Not Consult Regarding Appeal Once Client Expressed an Interest in Getting Less Time

United States v. Pham, No. 11-50717 (July 8, 2013) (Wiener, Dennis, Owen)

Pham, a Vietnamese refugee who speaks no English, pleaded guilty pursuant to a plea agreement with an appeal waiver. Counsel explained to Pham that he was likely to receive the mandatory minimum sentence, but Pham believed he would get probation. Pham had no criminal history and only started growing marijuana because his wife was diagnosed with a brain tumor. The Government, however, did not believe that he was being truthful about his conduct and did not move for a § 5K1.1 downward departure. Similarly, the district court concluded he did not qualify for safety valve and sentenced Pham to five years.

Immediately after sentencing, Pham spoke with his counsel and said he "was concerned about getting 60 months and wanted to do something to get less time." Counsel discussed with Pham the possibility of a reduced sentence pursuant to Rule 35 if he cooperates, but counsel did not mention or discuss the possibility of a direct appeal, and no notice of appeal was filed. Pham later filed a § 2255, which the district court denied.

The panel reversed, holding that counsel breached his duty to consult because Pham reasonably demonstrated to counsel that he was interested in appealing since counsel knew Pham had hoped to receive a sentence of probation only and Pham was visibly upset when he told counsel that he wanted to do something to get less time. "We disagree [with the district court] that a lay defendant, particularly one who speaks no English, must incant the magic word ‘appeal’ to trigger counsel’s duty to advise him about one. . . . [C]ounsel’s professional opinion eschewing appeal does not excuse failure to consult altogether."

The lesson: Consult with your client regarding an appeal. The Supreme Court predicted that this duty would exist "in the vast majority of cases." Thus, failure to consult will likely be ineffective assistance of counsel.

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NYT Editorial: Justice Sequestered

The New York Times editorial board discusses the damage sequestration is causing the justice system in its July 21st editorial: Justice Sequestered.
The madness of Washington’s across-the-board budget cuts known as sequestration is causing real damage to the American justice system — undermining the sound functioning of the courts and particularly imperiling the delivery of effective legal representation to poor people accused of federal crimes.

Friday, July 19, 2013

Recap of Recent Supreme Court Decisions

Categorical Approach Wins: No Modified Categorical Approach for “Missing” Element
Descamps v. United States, No. 11-9540 (June 20, 2013) (Kagan, Roberts, Scalia Kennedy, Ginsburg, Breyer, Sotomayor, majority; Kennedy, concurrence; Thomas, concurrence in judgment; Alito, dissent)
The Supreme Court once again reiterates its support of the categorical approach, rejecting the Ninth Circuit’s attempt to allow judges to look beyond the statute when a statute has a single, indivisible set of elements.  The statute at issue in this case is California’s burglary statute, California Penal Code section 459, which does not have as an element unlawful entry, an element of the generic definition of burglary.  The majority holds firmly that the modified categorical approach is a tool that only applies to divisible statutes to permit a court to determine which statutory phrase was the basis for the conviction.  The modified categorical approach does not provide an excuse to look at underlying facts for indivisible statutes that are broader than the corresponding generic offense.  Under the categorical approach, the key is elements, not facts.  Since section 459 is indivisible and broader than generic burglary, it categorically is not a “violent felony” under the Armed Career Criminal Act.
Justice Thomas concurs in judgment, arguing that, pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any judicial fact-finding that increases the statutory maximum violates the Sixth Amendment.
Justice Alito dissents, opting for “a more practical reading” that would allow a sentencing enhancement “[w]hen it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of” the generic offense.  How it becomes “clear” to the district court that the defendant committed acts that are not elements of the charged offense is a little fuzzy, but, then again, that’s the majority’s point.
For more analysis, see the Steve Sady’s post on the Ninth Circuit Blog:
Statutory Elements that Increase Mandatory Minimum Must Be Submitted to Jury
Alleyne v. United States, No. 11-9335 (Thomas, Ginsburg, Breyer, Sotomayor, Kagan, majority for Parts I, III-B, III-C, and IV; Sotomayor, Ginsburg, Kagan, concurrence; Breyer, concurrence in part; Roberts, Scalia, Kennedy, dissent)
Pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), any fact—other than a conviction per Almendares-Torres, which the Court did not address—that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt.  In a 5-4 split, the Supreme Court extends the Sixth Amendment to findings triggering mandatory minimums, thereby reversing Harris v. United States, 536 U.S. 545 (2002).  This case dealt with 18 U.S.C. § 924(c), carrying a firearm in relation to a crime of violence.  The jury did not find that Alleyne brandished the firearm, but the district court did, resulting in an increase of the mandatory minimum from five years to seven years.  The Supreme Court disagreed.  So, now, brandishing and other “elements” that result in an increased penalty range must be submitted to the jury.
Justice Sotomayor’s concurrence explains why overturning such recent precedent is permissible under the Court’s stare decisis precedent.  Justice Breyer concurs and states that he still disagrees with Apprendi but can no longer abide the incongruity of Harris given Apprendi.  Justice Roberts dissents, reiterating the reasoning of Harris—that Alleyne could have gotten seven years and that findings relating to mandatory minimums infringe on the judge’s discretion, not on the jury trial right, so the Sixth Amendment does not apply.
Eroding the Fourth Amendment: DNA Testing of Arrestees OK
Anyone who does not like the idea of his DNA being taken for a simple arrest should just skip to Justice Scalia’s dissent, delight in his sharp criticism of the majority’s tortured reasoning, and then complain that the majority won out.  As Justice Scalia points out, the DNA collection permitted by the Maryland DNA Collection Act does not aid in identification but is specifically designed to aid in the investigation of crimes, for which suspicionless searches are prohibited.  Thanks to the majority, however, the Act is declared constitutional even though—since all parties concede that Maryland could have constitutionally taken King’s DNA after his conviction—it “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations,” those who are arrested and not convicted.
How does the majority justify such an intrusion for someone who is only arrested, not convicted, of a crime? First, the majority places great weight on the benefits to the criminal justice system and police investigative practices.  Then, the majority characterizes the cotton-swab intrusion in the arrestee’s mouth as minimal—“a light touch on the inside of the cheek.”  Plus, since the arrestee had the misfortune to be arrested, he has diminished expectations of privacy.  Next, the majority states that the search was a tool, like fingerprints, to confirm the identity of the arrestee.  (Nevermind that King’s DNA was not tested until months after his arrest and that the Act itself prohibits the DNA to be examined until after the first scheduled arraignment date.)  Finally, the majority believes that the requirement in the Act that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored” adequately safeguards against using the DNA to find non-identity information.  This places a lot of trust in statutory protections against invasion of privacy. 
Applying SORNA to Pre-SORNA Military Offender Is Necessary and Proper
The short story is that SORNA applies to someone convicted of a sex offense by court martial pre-SORNA even though he never travelled interstate and was not on supervised release at the time of SORNA’s enactment in 2006.  The majority reasons that this is a proper use of the Necessary and Proper Clause since Kebodeaux was subject to a federal registration requirement prior to 2006 pursuant to the Wetterling Act.  The majority characterizes SORNA as merely modifying Kebodeaux’s duties under the Wetterling Act.
Chief Justice Roberts concurs separately to clarify that the Constitution does not grant the federal government police powers (since the majority gets very close to suggesting that it does), and that applying SORNA to someone like Kebodeaux was a reasonable and necessary to execute Congress’s power to regulate the conduct of members of the military.
Justice Scalia’s dissent challenges whether the Wetterling Act’s registration requirement was itself a valid exercise of any federal power and whether SORNA was actually designed to carry the Wetterling Act into execution.  He concludes that the federal power for the Wetterling Act was doubtful and that SORNA obviously was not designed to carry the Wetterling Act into execution.
Justice Thomas’s dissent emphasizes the limited powers that the Constitution bestows on the federal government and criticizes the majority’s failure to identify an enumerated power that SORNA carries into execution.  He concludes that Congress’s power to make rules and regulations for the armed forces does not include sex offender registration under SORNA.
Federal Sentencing Guidelines Are Subject to the Ex Post Facto Clause
The majority concludes that, even though the Federal Sentencing Guidelines are no longer mandatory, the Ex Post Facto Clause applies to them.  A district court must apply the Guidelines in effect on the date the defendant is sentenced unless the Guidelines on the sentencing date violate the Ex Post Facto Clause.  If that’s the case, then the district court must use the Guidelines in effect on the date the offense was committed. 
Here, Peugh was charged with nine counts of bank fraud.  Under the 1998 version of the Federal Sentencing Guidelines, when the acts occurred, his guideline sentencing range was 30 to 37 months.  Under the 2009 Guidelines, his advisory guideline range was 70 to 87 months.  Since he was sentenced under the 2009 Guidelines in violation of the Ex Post Facto Clause, the case was remanded.
Justice Thomas argues in his dissent that the retroactive application of the 2009 Guidelines to Peugh did not alter his punishment or violate the Ex Post Facto Clause since the Guidelines are not mandatory and sentencing remains subject to the district court’s discretion.  Fortunately for us defenders, he loses that argument.

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Tuesday, July 02, 2013

Special Concurrence Casts Doubt on Precedent that Identity Evidence Is Never Suppressible

United States v. Hernandez-Mandujano, No. 12-30793 (June 27, 2013) (Reavley, Jolly, Smith) (per curiam)

Two U.S. Border Patrol Agents "clearly violated the Fourth Amendment in stopping Hernandez" 450 miles from the nearest international border. The agents "felt convinced that Hernandez was transporting illegal aliens," but the panel found that the agents’ reasons for stopping Hernandez—because he had both hands on the wheel, was focused on the road ahead of him, stopped talking to the passenger when the patrol car passed him, slowed down after passing the agents, and was driving an SUV registered to a woman—did not rise to reasonable suspicion. After being illegally stopped, Hernandez admitted to being a Mexican national present in the United States without permission.

So, what’s the remedy? Hernandez requested that all evidence from the warrantless stop be suppressed. The district court denied this request, and the panel affirmed based on Fifth Circuit precedent that an immigrant’s identity and his alien file ("A-file") cannot be suppressed. See United States v. Roque-Villanueva, 175 F.3d 345, 346 (5th Cir. 1999).

Judge Jolly wrote a special concurrence criticizing this binding precedent. He lays out how the denial of such suppression motions is based on a misapplication of the Supreme Court’s holding in I.N.S. v. Lopez-Menodoza, 468 U.S. 1032 (1984), and how—while all "Circuits seem to agree that if a defendant sought only to suppress his identity itself, he would fail"—the "Fourth, Eighth, and Tenth Circuits . . . correctly distinguish between such a broad attempt to suppress one’s identity itself and an attempt to suppress evidence relating to one’s identity, such as statements made during an unlawful arrest."

But for the binding precedent of Roque-Villanueva, Judge Jolly concludes the proper disposition of the case would be to remand for further development of the record to determine whether Hernandez made any statements that are potentially suppressible. 
[A]llowing our erroneous interpretation of Lopez-Mendoza to persist essentially affords law enforcement officers staggering authority to detain anyone they suspect of being an illegal alien, for so long as they retrieve only evidence related to that person’s identity, they will escape any ramifications for even grossly unconstitutional behavior. Thus, while precedent requires me to concur with the majority, I hope I have made clear that our precedent is an incomplete and erroneous reflection of the propositions for which Lopez-Mendoza stands.

So, file those suppression motions even if the remedy seems precluded by Roque-Villanueva, and read Judge Jolly’s special concurrence.

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